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Offal off-limits? Officially, no.
April 9, 2009 4:00 PM   Subscribe

The Supreme Court of Canada has ruled that a search of your trash doesn't violate your privacy. This decision is in line with that of the United States.

For those interested in the issues surrounding privacy in Canada, the blog of the Office of the Privacy Commissioner is an invaluable resource. (prev)
posted by Lemurrhea (80 comments total) 1 user marked this as a favorite

 
What a load of rubbish
posted by ob at 4:04 PM on April 9, 2009


ProTip: Don't put evidence of your drug lab in your garbage in front of your house. Put it in your neighbour's garbage.
posted by GuyZero at 4:08 PM on April 9, 2009 [5 favorites]


I'm all in favor of privacy rights, but I don't really see why this is a big deal. Why would anyone have an expectation of privacy as regards stuff that, pretty much by definition, they're putting in a public place to be taken away by strangers (often employees of the municipal government), and deposited in another public place (often owned by the municipal government)?

If you're that worried about it, shred everything with your name on it, get a burn barrel, and / or take your shit to the dump yourself.
posted by dersins at 4:10 PM on April 9, 2009 [16 favorites]


I'm a pretty big fan of privacy rights, but I think I'd have to side with the court here. It's certainly rude and nosy to root through someone's trash, but if you just leave it out on the street like that, it's fair game.

Note to self: Invest in a wood stove or fireplace for disposal of incriminating documents wood.
posted by explosion at 4:11 PM on April 9, 2009


Not that this is exactly a jurisprudential test, but if I saw somebody rifling through my rubbish bin, I'd think "I hope they can use whatever they find" whereas if I saw somebody going through stuff I'd, say, left lying in my garden, I'd feel rather differently.

If you've thrown something away, or are in the process of throwing something away, are you maintaining a meaningful claim to the privacy of that item? It's not an issue that feels cut-and-dried to me.
posted by yoink at 4:11 PM on April 9, 2009


Why is this a good Metafilter post?
posted by Chocolate Pickle at 4:14 PM on April 9, 2009


> Why is this a good Metafilter post?

One man's trash...
posted by The Card Cheat at 4:15 PM on April 9, 2009 [12 favorites]


It's a worse post than one about some backwater racist minor elected official?
posted by GuyZero at 4:22 PM on April 9, 2009


Why is this a good Metafilter post?

For reasons similar to why this is.

In my opinion, although I do end up agreeing with the Court, there is a sticky point. Actually, 2. The first that you're not dumping your garbage on the ground for anyone to come see, but rather as part of a centralized effort to minimize waste & resources used in their disposal. Everyone could burn their waste if they're worried - but it is preferable to use garbage disposal.

Secondly, it creates a bit of a forced quirk on anyone who is worried about the police spying on them (something which the RCMP has a long and sordid history of doing to innocent people, notably in their counter-terror divisions pre-CSIS). If you're suspicious, you can't throw out your trash, and must burn it. Which gives the police an incentive to look at a person more carefully because they burn their trash, and that's the whole nothing to hide bag of worms all over again.

And now I will stop threaditorializing.
posted by Lemurrhea at 4:26 PM on April 9, 2009


Garbage in, garbage out.
posted by Blazecock Pileon at 4:27 PM on April 9, 2009


After September 11, S.N.I.T.C.H. recommended searching through your neighbor's trash to find terrorists.
posted by mattdidthat at 4:30 PM on April 9, 2009


Aaah, the tale of the curtilage.
posted by Ironmouth at 4:30 PM on April 9, 2009


I think once trash is on the curb, it is trash, and can rightfully be assumed that you are waving your right to it. Buy a shredder for your no longer sensitive papers, don't dispose of stuff you want others to see and know about in a public setting.

Now... does this apply to unlocked dumpsters outside company headquarters? (not that they are unlocked anymore) Or, government (or anyone's) information kept on a harddrive that is sent to the dump?
posted by edgeways at 4:31 PM on April 9, 2009


I'm waving all my writes!
posted by mrnutty at 4:36 PM on April 9, 2009


I am relieved to learn that my university living rooms were not, in fact, filled with violations of other people's privacy.
posted by you just lost the game at 4:37 PM on April 9, 2009


Garbage in, garbage out.

Quit Harperin' on the guy.
posted by gman at 4:42 PM on April 9, 2009


Now... does this apply to unlocked dumpsters outside company headquarters?

I imagine it does, assuming that the dumpsters are on public property (which they usually aren't). With that in mind, going through a company's open dumpster would simply be a matter of trespassing.

I'm in favor of this ruling...dumpster diving is often a very good thing.
posted by dhammond at 4:52 PM on April 9, 2009 [1 favorite]


The ruling absolutely makes sense, but people's garbage absolutely does reveal intimately private details that people almost universally expect to be treated as the gravest matters of privacy.

I think some more work needs to go into this.
posted by -harlequin- at 5:01 PM on April 9, 2009


I just got in a big argument with my Constitutional historian spouse on this one. I agree with our Suprememe Court--no reasonable personal should expect that the stuff they put at the curb isn't going to be seen by anyone. In fact, in many communities, people put stuff by the curb when they are offering it up to anyone to haul away (I'm anticipating the June exodus of college students and the resulting couches lining the streets). I won the argumeut one salient point made by herr doktor: "We bag trash up and keep it on our property until garbage day, then wheel it to the curb--wrapped up--to be taken away and tossed in a landfill unmolested. "If I wanted it to be seen by the public, I'd put it on frikkin' ebay."
posted by njbradburn at 5:09 PM on April 9, 2009


Let's monitor your sewage line for a good idea of the drugs you're on, illegal or not.

You're letting all of those photons just stream away; they are available for terahertz imaging, right through your walls. If you were serious, you'd put copper plate all around your home.

You just left that hair sitting there, with a follicle. Surely you cannot object to the insurance company running a quick assay on the drugs you've been on and your DNA. Seem to have a lot of SNPs for diabetes, don't you?

Parabolic microphone, good for all of those sound waves you're just tossing out. If you cared, you'd soundproof your entire home. Clearly, you don't care.
posted by adipocere at 5:13 PM on April 9, 2009 [11 favorites]


The ruling absolutely makes sense, but people's garbage absolutely does reveal intimately private details that people almost universally expect to be treated as the gravest matters of privacy.

Then they should do something about that rather than expect things they've relinquished ownership of and removed from their property to be treated as theirs.
posted by Pope Guilty at 5:13 PM on April 9, 2009 [1 favorite]


Cute arguments, adipocere, except for the fact that they're totally fallacious, aside from possibly the first one.
posted by dersins at 5:15 PM on April 9, 2009 [4 favorites]


adipocere, those are terrible analogies.

For those of you who oppose this ruling, where does the expectation of privacy end? When the trash is taken by the trash company? When it's placed into a dump? Into a landfill? You scream and scream and scream about privacy and yet you're willing to make no concessions whatsoever to obtain it. I mean, god, are you going to post pictures of yourselves committing crimes to Facebook and scream when you get arrested?
posted by Pope Guilty at 5:16 PM on April 9, 2009 [7 favorites]


Cute arguments, adipocere, except for the fact that they're totally fallacious, aside from possibly the first one.

The first one could very easily be construed as a form of wiretapping, and dealt with according to those laws.
posted by Pope Guilty at 5:16 PM on April 9, 2009


Then they should do something about that rather than expect things they've relinquished ownership of and removed from their property to be treated as theirs.

You old reactionary you!
posted by Ironmouth at 5:18 PM on April 9, 2009


adipocere, those are terrible analogies.

What gives you that idea?

If there's nothing stopping the government from actually entering your property to pick up trash, there wouldn't logically be anything stopping them from not actually entering your property, but simply detecting radiation emanating from it.
posted by oaf at 5:25 PM on April 9, 2009


If there's nothing stopping the government from actually entering your property to pick up trash, there wouldn't logically be anything stopping them from not actually entering your property, but simply detecting radiation emanating from it.

Kyllo v. United States

Not Canada, but see what you think of the reasoning
posted by Inspector.Gadget at 5:29 PM on April 9, 2009 [1 favorite]


Not Canada, but see what you think of the reasoning

Yes, it's not Canada. In the U.S., the police wouldn't be able to trespass on your property to pick up your trash. In Canada, they can.
posted by oaf at 5:31 PM on April 9, 2009


That's why I always throw a live scorpion in with my garbage.
posted by qvantamon at 5:31 PM on April 9, 2009 [6 favorites]


If there's nothing stopping the government from actually entering your property to pick up trash

They didn't enter his property. They didn't have to.

And seriously, why would you expect that something you leave by the road, with the expectation that it will be taken away, will not be taken? Do you people have so little understanding of how garbage works that you think the back of a trash truck is a magical incinerator which removes garbage from existence?
posted by Pope Guilty at 5:33 PM on April 9, 2009


If there's nothing stopping the government from actually entering your property to pick up trash

Except there is, and it's called the Fourth Amendment. You are conveniently neglecting the fact that when people leave their trash to be picked up, they leave it on public property, i.e. a street or alleyway. This is a wholly different scenario from having someone come onto your property. I can't believe I even have to explain this.
posted by dhammond at 5:33 PM on April 9, 2009 [1 favorite]


If there's nothing stopping the government from actually entering your property to pick up trash, there wouldn't logically be anything stopping them from not actually entering your property, but simply detecting radiation emanating from it.

Wait--surely the government doesn't have any right to enter my property to take trash, does it? I mean, how would they know whether or not I've decided to call anything on my property trash? Wouldn't their right to take the trash be limited to trash that I have actually placed outside my property (i.e., in a curbside trash bin). If they enter the property, that's trespassing.

And don't most of these things come down not to "logic" but to "reasonable expectation." One has a reasonable expectation of privacy within the walls of one's house. One does not have a reasonable expectation that no one will have a look at your trash and think "hey, I could use that!"
posted by yoink at 5:35 PM on April 9, 2009


Fallacious how? Are you suggesting it is physically impossible, or something else?

It's not particularly difficult to, say, bounce a laser beam off of your window and pick up conversations inside from detecting how the glass vibrates. You can use the same chips that used to power old Apple ][es to pull that off. Terahertz imaging is the fun stuff we are gearing up for in the airports. FLIR cameras, how about those? DNA sequencing is getting cheaper, faster, and better by the year, and you're certainly shedding.

Monitoring a sewage line could not be construed as wiretapping. Just because not everyone is completely quiet with their bathroom noises doesn't mean that it is a form of communication.

I'm not sure where expectations of privacy "should" begin and end, but I am not accepting the idea of "things you let go" as an automatic gimme. The DNA angle alone is enough to give me pause. My point is that technology's progress will enable greater examination than ever before, and things which were previously innocuous will no longer be so.

Because of this, I would be careful about establishing precedent on a casual basis.
posted by adipocere at 5:42 PM on April 9, 2009 [3 favorites]


I keep my trash in a plastic bag until trash day because it smells if I don't. And in my city, we're not allowed to put the trash bins out until pickup day or the night before. Prior to that, they have to stay in the garage or (private) alley. And once they're out, they're on public property. We own a shredder.
posted by rtha at 5:42 PM on April 9, 2009


I disagree.

I leave the curtains to my living room open and of course expect people can casually see what's going on inside. I don't expect someone across the street to set up a 24-hour recording with telephoto lens and archive it all. It's the same idea here : All of these "reasonable expectation of privacy" issues have to do with what people reasonably expect to happen with whatever is put out there, not with some clearly defined permission bit on what has been released to the public and what has not.

Someone digging through my trash looking for discarded treasure or scraps is a different question than someone meticulously poring through it to reconstruct an image of what is going on behind the doors. If a jilted lover was sneaking in and hauling off your trash each morning, then gathering information about your workplace, shopping habits, and where your relatives lived, and if you found out, you would rightfully be creeped the fuck out.

In the US the (ostensible) standard for the government getting to act like a creep because they think you are doing something illegal is to get a warrant. That seems like not so much to ask here.

So Boo to Canada for "catching up" with us on this. :(
posted by Bokononist at 5:44 PM on April 9, 2009 [2 favorites]


MetaFilter: I just got in a big argument with my Constitutional historian spouse on this one.
posted by jimmythefish at 5:46 PM on April 9, 2009 [5 favorites]


If a jilted lover was sneaking in and hauling off your trash each morning, then gathering information about your workplace, shopping habits, and where your relatives lived, and if you found out, you would rightfully be creeped the fuck out.

Does that mean it should be illegal?
posted by Pope Guilty at 5:47 PM on April 9, 2009


For those saying they "enter your property", I'd take a better look at your property lines. The end of your driveway, where trash is left, is city property if I am not mistaken.
posted by Dark Messiah at 5:53 PM on April 9, 2009


Garbage in, garbage out.
posted by Blazecock Pileon at 7:27 PM on April 9


7 out of 9 justices on the Supreme Court of Canada were appointed by Liberal prime ministers.

Moron in, logic out.
posted by Krrrlson at 5:59 PM on April 9, 2009 [1 favorite]


The end of your driveway, where trash is left, is city property if I am not mistaken.

Typically, yes - I use my own city's example. When we lay down a road right-of-way on a plan (I'm an urban planner) on a local residential street there's a 9m road surface within a 15m right-of-way that's city property. That's quite a lot - 3m or 9ft on either side. Look out your window and count 9 feet back from the paved surface and that's typically where your own property would start. I'd be surprised if anyone actually places their garbage on their own private property for collection.

Just a general comment, but my own gut/kneejerk feeling is that there should also be an expectation that people aren't running drug labs in their houses. In my mind, in a broad societal context, one must at least consider that they're not contributing to civil society when they're actively committing felonies, not paying taxes, etc.
posted by jimmythefish at 6:04 PM on April 9, 2009


They can take our trash! But they'll never take our freedom!
posted by Joe Beese at 6:05 PM on April 9, 2009 [2 favorites]


Maybe it's time to sort your garbage: public and private. Public to the curb, private on your property for a contracted garbage man who will take the necessary steps to destroy your waste. Still, that would just be a ridiculous extension of a ruling that only serves to erode the public's respect for the rule of law::warrants for searches of private property.
posted by acro at 6:06 PM on April 9, 2009 [1 favorite]


I'm not sure where expectations of privacy "should" begin and end, but I am not accepting the idea of "things you let go" as an automatic gimme. The DNA angle alone is enough to give me pause. My point is that technology's progress will enable greater examination than ever before, and things which were previously innocuous will no longer be so.

But no one is suggesting that "things you let go" is "an automatic gimme." You make it seem as if there's some weird new technology that has just been invented that gives access to people's trash (the "lifting the lid" breakthrough) and we're trying to figure out the implications. The point about things like DNA is that although we've always known we shed bits of our body all over the place, we have, traditionally, had a "reasonable expectation" that that wasn't leaving us liable to having our genomes analyzed.

There never has been, however, any expectation that things placed for collection as trash on a public thoroughfare are "private property"--has there?
posted by yoink at 6:19 PM on April 9, 2009 [2 favorites]


By the way, looking at the actual ruling, I see that while they didn't enter his property to take the trash, the trash itself was resting on this guy's private property; they had to reach over a fence to pick it up.

That, I think, does cross a line, although it is made a bit blurry by the fact that this seems to have been the normal way in which he placed his trash for collection; so you can still make the argument that he had no "reasonable expectation" of this material not becoming public. Still, it seems to me clearly different from someone going through a bin placed on public property.
posted by yoink at 6:23 PM on April 9, 2009


"Which gives the police an incentive to look at a person more carefully because they burn their trash, and that's the whole nothing to hide bag of worms all over again."

Start vermiposting and you can get worms to get rid of your sensitive documents.

"Let's monitor your sewage line for a good idea of the drugs you're on, illegal or not. "You're letting all of those photons just stream away; they are available for terahertz imaging, right through your walls. If you were serious, you'd put copper plate all around your home. "You just left that hair sitting there, with a follicle. Surely you cannot object to the insurance company running a quick assay on the drugs you've been on and your DNA. Seem to have a lot of SNPs for diabetes, don't you? "Parabolic microphone, good for all of those sound waves you're just tossing out. If you cared, you'd soundproof your entire home. Clearly, you don't care."

Except every single one of these measures requires extraordinary surveillance. Your garbage is set out at the street for the government to take away (and do with what they wish).

I can't remember whether the mounties can IR your residence looking for a grow op and if they can if they need a warrant or some sort of probable cause first. I'm sure it's come up and it would directly parallel the examples you provided.

Anyone, even the innocent, not shredding or otherwise destroying financial, sensitive or legal documents before disposal is foolish and not because of the RCMP but because of random strangers and neighbours. For someone engaged in a clandestine activity it's down right stupid.

Dark Messiah writes "For those saying they 'enter your property', I'd take a better look at your property lines. The end of your driveway, where trash is left, is city property if I am not mistaken."

In this case the garbage was actually on the defendant's property but placed where collectors, and anyone who wandered by, could access it: Reaching over his property line, officers made off with several bags of refuse, eliciting enough evidence of a potential drug-manufacturing operation to obtain a search warrant on his house.
posted by Mitheral at 6:27 PM on April 9, 2009 [1 favorite]


Why is this a good Metafilter post?

Because of the quality discourse it fosters.
posted by rokusan at 6:33 PM on April 9, 2009 [2 favorites]


If I saw somebody rifling through my rubbish bin, I'd think "I hope they can use whatever they find"

I chased a guy away who was riffling through a handful of papers in my trash once.

Bought a shredder the next day.
posted by rokusan at 6:34 PM on April 9, 2009


rokusan, did you ever stop to think that might have been Emilio Estevez or Charlie Sheen?
posted by mannequito at 6:40 PM on April 9, 2009 [2 favorites]


The "on my property" argument is fine and all but...

Placing my garbage on the curb is a part of a transaction between me and the local municipal garbage collection service. When that body picks up the garbage, it's now theirs and they can do with it as they please, including turning it over as evidence to another division of that municipality. In the interim, though, no one has the right to rummage through my garbage. If they did have such a right, I would be no longer secure in my person, papers, or effects. (Don't know about Canada, though.) The fact that the garbage eventually ends up in a public dump where anyone can access my former property is not relevant since it wouldn't necessarily be directly associated to me (i.e. in front of my house) anymore. Basically, I should have a reasonable expectation of privacy all the way up until the garbage collector picks up my trash.

In practice, I wouldn't care if private citizens rummaged through my garbage, but if the state wants that power, I'd rather tell them to go fuck themselves. Especially since all they would have to do is coordinate with garbage collection. It might seem unreasonable but in cases of privacy, I think all unreasonable requirements should fall on the state and not me.
posted by effwerd at 6:42 PM on April 9, 2009 [3 favorites]


They didn't enter his property. They didn't have to.

Please explain how they removed the trash from his property without entering said property. Telekinesis?
posted by oaf at 6:53 PM on April 9, 2009


effward, well if you live in the U.S. you don't have that level of "protection"
posted by thewalledcity at 7:04 PM on April 9, 2009


rokusan, did you ever stop to think that might have been Emilio Estevez or Charlie Sheen?

Damn. And I have a whole cabinet full of booze, too.
posted by rokusan at 7:19 PM on April 9, 2009


Yes, I know, thewalledcity. It's a shame the SCOTUS used such simple-minded reasoning (animals and the public can access it so why can't the state) in their ruling. O'Connor and Stevens should be ashamed of their part in the decision. I'm, obviously, more in line with Brennan.
posted by effwerd at 7:21 PM on April 9, 2009


This is such old tired and established case law.
Why is this still posted???
If you disagree please tell us when you think something is no longer your property?
posted by hooptycritter at 7:35 PM on April 9, 2009


"This is such old tired and established case law. "

Even in Canada?
posted by Mitheral at 7:40 PM on April 9, 2009 [2 favorites]


This is such old tired and established case law.

Last I checked (about seven years ago, well after the cited Greenwood decision, when I had to do a project on this precise subject) the U.S. actually had a circuit split on whether a reasonable expectation of privacy existed in trash left out this way.
posted by exogenous at 7:52 PM on April 9, 2009 [2 favorites]


Please explain how they removed the trash from his property without entering said property. Telekinesis?

A pole. Maybe with a hook at the tip.

It's like when I "let myself in" into people's houses. I take my credit card, and slide it on the door crack. Technically I'm not invading, it's only the credit card that's crossing the threshold. I mean, come on, nobody would complain if I slid some cash under the door, how's this different?

Anyway, after I'm done with that, the door's open. If the door's open, it's a clear sign that I'm welcome to come in.
posted by qvantamon at 8:26 PM on April 9, 2009 [3 favorites]


This is why I mix all my trash, kitchen, bedroom, bathroom and office together. If someone wants to piece together my shredded paperwork badly enough that they are willing to dig through tampons and kitty litter, they've got some serious issues.
posted by silkygreenbelly at 8:31 PM on April 9, 2009 [2 favorites]


As a slightly interesting aside, in Toronto the city has said that when recycling goes out to the curb in the blue boxes, it actually belongs to the city and people going through it for bottles to return are stealing.

So, is the same true for the garbage?
posted by Dipsomaniac at 8:41 PM on April 9, 2009


One of the most interesting and ironic results of this ruling was the famous "penis pump" case.

A guy who had been abused in a horrible drug treatment center called Straight later regularly went through the trash of the guy who ran it. This guy, drug warrior Mel Sembler--who Bush made ambassador to Italy where he became famous for naming the expensive new embassy after himself and then went on to run the Scooter Libby defense fund-- is a big Republican money man.

Anyway, Richard Bradbury found Sembler's penis pump and put it up for auction on eBay, seeking to donate any proceeds to victims of Straight. Sembler sued for invasion of privacy: he lost because of the drug war expansion of government rights that he himself had supported!

My favorite quote ever: "This story is not about one man's penis pump, but about child abuse." [pdf]
posted by Maias at 8:56 PM on April 9, 2009 [2 favorites]


If you disagree please tell us when you think something is no longer your property?

This is actually more interesting than your dismissive tone implies. (Now that I've read the whole case and not just the Wikipedia page,) Brennan's dissent in Greenwood is actually more liberal than mine because the police did exactly what I believe is justifiable: the cops got the garbage man to clean out his truck, pick up the suspect's garbage by itself, and turn it over the them. As far as I'm concerned the transaction is over when the city picks up my garbage, regardless of who they might be conspiring with. I can sympathize with Brennan but his opinion seems to be too liberal for me since the public takes possession of it as soon as the garbage collector collects it. What the city or the public chooses to do with it from there is up to them.

But up until the point the garbage collector takes it, no one else should have the right to go through it as they please. I tie my garbage in an opaque bag, I place the bag in a can, and place a cover on the can. What else should I have to do to get the message across? Put a lock on it? And speaking of garbage cans, does the fact that I leave my garbage can at the curb mean that anyone can take it and I can't claim it stolen? How about my car?

I am interested in the circuit court cases that exogenous mentions. It would be good to know what rationale there might be to expect that my garbage would remain mine even after the city takes possession of it. Or if they're just regarding cases like the one Maias cites just above.
posted by effwerd at 9:35 PM on April 9, 2009


adipocere, those are terrible analogies.

Everybody smugly making this point should know that Canadian criminal law has allowed searches of houses with infrared cameras (R. v. Tessling) based on reasoning essentially identical to his second point and that similarly courts have allowed DNA evidence to be introduced based on thrown-away bodily samples akin to his third.
posted by mightygodking at 12:48 AM on April 10, 2009


so effwerd by your logic - if you threw out a cat turd, it fossilized, then someone found it thousands of years later and sold it your descendants would then be able to sue to get the profits from the turd.

Throwing something away is giving up property rights - much of our law is based on property rights. If you are concerned that you are discarding something incriminating and/or illegal then you might want to think of a better way of disposing of it.

I am no fan of cops but I cannot see the outrage in them looking though trash.
Mais' penis pump cite is excellent.
Investigative reporters also go though trash to good results.

Your car analogy is silly- when you park your car on the street, you lock it and retain the key - proof that you retain property rights.

So what if you put your trash in a white bag and close the top? You still intend for someone to take it away and deal with it out of your control. Maybe you should set up your own waste management on private property if you are so concerned about someone finding something like a collection of photos of you dressed up as variosu Muppets who are engaged in lewd acts with an inflatable sheep.
posted by hooptycritter at 4:44 AM on April 10, 2009


so effwerd by your logic - if you threw out a cat turd, it fossilized, then someone found it thousands of years later and sold it your descendants would then be able to sue to get the profits from the turd.

Is this some internet thing where you create some extreme exaggeration of my position and attack that instead of the actual points I made?

Throwing something away is giving up property rights

This doesn't really counter any point I made.

if you are so concerned about someone finding something like a collection of photos of you dressed up as variosu Muppets who are engaged in lewd acts with an inflatable sheep.

Huh. What was it about my comments that encourages you to say something like this? If the only way you can discuss this issue is with a dismissive tone and juvenile implications that I am some paranoid deviant, then I imagine you aren't really serious about the discussion.
posted by effwerd at 7:27 AM on April 10, 2009


yoink, I am not pretending that going through someone's trash is new technology.

What I am saying is twofold:

1) I consider the idea of whether or not the garbage or discarded matter is on private property to be of distant, secondary importance to the expectation of privacy. That should have been obvious when I discussed shed hair and skin, but in the interests of nobody mistaking that I am making it "seem as if there's some weird new technology that has just been invented that gives access to people's trash," I'll state it for the record.

2) What we establish now can come back to haunt us as the invasive powers granted by technology become cheaper, more prevalent, more accurate, and easier to deploy. "On my property" was once a great bit of legislative shorthand back when it was difficult to figure out what someone was doing behind closed doors; that is no longer true.
posted by adipocere at 8:46 AM on April 10, 2009


I am interested in the circuit court cases that exogenous mentions.

In the light of day I recall that the split is actually among states, in that some provide greater privacy protections here than others. Some quick googling on my part suggests they are California, Hawaii, New Jersey, Washington and Vermont. I looked for my legal research and writing on the subject but couldn't find it.
posted by exogenous at 9:05 AM on April 10, 2009


effwerd, your points are specious - that was the point I was making.
Your analogy of parking your car shows how illogical your positions are. You keep possession and intend to go back to your car.
I don't think you intend to go to the dump to try to find the diaper you threw out yesterday.

If you knew about law then you would recognize that the courts analyze based on property rights. By definition this is about property.

Hypotheticals are used in law schools. duh.

So when do you consider your trash no longer your property?- please answer the question - then we can see whether your position is logical and tenable.
posted by hooptycritter at 9:35 AM on April 10, 2009


So when do you consider your trash no longer your property?

When the garbage collector, whom I pay specifically for this purpose, picks it up and puts it into the back of a truck. It's entirely possible that I will realize that I threw something out that I actually wanted back, at which point I would try to retrieve whatever it was. I shouldn't have to expect the police trespassing on my property and stealing my trash to come into play.
posted by oaf at 11:24 AM on April 10, 2009


In the light of day I recall that the split is actually among states, in that some provide greater privacy protections here than others. Some quick googling on my part suggests they are California, Hawaii, New Jersey, Washington and Vermont. I looked for my legal research and writing on the subject but couldn't find it.

Thanks, exogenous.

hooptycritter, I have already explained when I feel my garbage is no longer my property. And this is more than property rights, it's also about privacy. But let me spell it out again as clearly as I can manage.

Robbins v California established that in the process of a legal search of an automobile that "[u]nless a closed container found in an automobile is such that its contents may be said to be in plain view, those contents are fully protected by the Fourth Amendment." The first point the ruling makes, though regarding luggage, also asserts that "[a] closed piece of luggage found in a lawfully searched car is constitutionally protected to the same extent as are closed pieces of luggage found anywhere else." (my emphasis) Basically, "the Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view" regardless of where the container may be. They also made a point to note that there is no objective criteria for deciding whether a container is "worthy" or "unworthy", i.e. it doesn't matter whether it's a paper bag or a locked attache case.

Moving beyond property aspects, Katz also establishes the "reasonable expectation of privacy" test in that privacy is not simply a matter of protecting stuff, like personal effects, or a house; it's about protecting the person. So applied to the garbage issue, it's not primarily relevant that my intent is to dispose of the property. It is entirely relevant that I expect that my closed container will remain secure until the garbage collector collects it. "What a person [...] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."

So, I place my garbage in an opaque bag, tie the bag, place the bag in a garbage can, place a cover on the can, and place it on the curb, as is required of me in the municipal code. Again, simply because I intend on disposing of my property does not negate my expectation of privacy, which is to protect me, and not the garbage, per se. And just because my property is on a public street does not negate my expectation of privacy. When the garbage is claimed by the city when they pick it up, it is then no longer my property.

If you read Brennan's dissent in Greenwood, you'll get a much more comprehensive review of how I see this issue, except that I can't see any justification to protect the material after the city has collected it since that is the functional end of my part in the transaction. The fact that the contents are still in a concealing container seems to maintain its importance to Brennan but I no longer find the expectation of privacy reasonable at this point.
posted by effwerd at 11:40 AM on April 10, 2009 [1 favorite]


So, I place my garbage in an opaque bag, tie the bag, place the bag in a garbage can, place a cover on the can, and place it on the curb, as is required of me in the municipal code.
These municipal code is written to protect public health, not to ensure your privacy rights. Buying white trash bags and closing the top of the bag do not establish you desire to keep the contents of the trash private - those actions again are complying with a public health ordinance. The container is closed to keep vermin from getting into your trash, again a public health concern, not something the city thought up to protect your privacy.

If you have incriminating material you wish to dispose of then you should have the intelligence to do that in a way that doesn't land your ass in jail.

As stated before dumpster diving is a good thing for investigative journalists too.

Laws shouldn't be expanded to protect stupid people who engage in criminal acts.
You keep harping on privacy rights but you give up privacy rights all the time.
As soon as you walk into a convenience store you are filmed.

In my view, and in many courts' views the moment the municipal container hits public property then you have given up any expectation of privacy for the contents. You have discarded, thrown away, abandoned, the items in question, you no longer exercise control or ownership of them.
So your indignation about someone going through your trash is pretty funny and quite a bit sad.
posted by hooptycritter at 12:59 PM on April 10, 2009


In my view, and in many courts' views the moment the municipal container hits public property then you have given up any expectation of privacy for the contents.

That's nice, and I agree, but this court ruling allows police to enter private property to dumpster-dive, as they did in this case.
posted by oaf at 1:21 PM on April 10, 2009


“If you have incriminating material you wish to dispose of then you should have the intelligence to do that in a way that doesn't land your ass in jail.” = If you have nothing to hide then you should have nothing to fear from the government searching your home.

Why is it incumbent upon you to protect your privacy against predation? What if it’s not incriminating material, what if it’s merely uncomfortable? What if you’re a closeted homosexual? Hey, you shouldn’t have gay porn and condoms with someone else’s DNA in it if you didn’t want it broadcast all over town. Some folks find gay sex pretty funny and quite a bit sad, I'm sure they'd like to know all about it. And of course, it's their business once your garbage hits the curb. Cheating on your wife? Why shouldn’t the police know all about that? Got hemorrhoids? The local kids might find that pretty hilarious – why shouldn’t they taunt you with your thrown out Preparation H box?

Privacy issues are about human dignity, not about evading the law.

In any event – you do take steps to insure the privacy of your garbage.
You contract with waste hauling services (through your local government, at least in my town) to take your trash to the dump. It’s in a bag. For someone to search through it they would have to open that bag. Additionally – that one has contracted with government agency does not necessarily give all other government agencies the right to do whatever they wish with that.
If it was a law enforcement duty to haul garbage, that might be another story, it’s not.
But this “shred it” business proves my point – we’re only arguing threshold here. You’ve taken effort to make it harder for someone to get your personal information.
Well, with enough time and effort someone can piece together documents, or at least the information from them (indeed, there are machines that can do this digitally).
So just because something is shredded – according to the reasoning of folks on the other side of this – does not mean the government can’t just piece it back together. They found it, after all, in a “public” place.
Essentially, you’re not relinquishing your rights to your garbage, you’re delivering it with the understanding that it will be rendered “away” – the equivalent of destroyed. That it’s not within your capability to annihilate your garbage doesn’t mean it gives someone license to analyze it, no more than it gives anyone the right to reconstruct your shredded information.
And that’s exactly what this is – a reconstruction. To discern your behavior. Behavior you have not given approval to have discerned, but are only powerless to prevent discovery of – or rather – were assuming was going to be buried or otherwise eliminated by the agency you contracted with.
You want it “gone.” That it’s not within our capability to cleanly destroy our garbage doesn’t give anyone license to paw through it to reconstruct our behavior at ANY point. No more than it gives someone the right to piece together your shredded stuff.
I don’t know that I have an opinion on this either way. I mean in terms of efficacy in fighting crime and whether it’s worth it to give this power to law enforcement or not. Maybe it is.
But let’s be clear as to what it is we’re talking about.
I mean this is the same B.S. urine drug tests are based on. B.S. in the sense that – hey, why not just test your blood? Oh, well, we can’t do that because it’s within your body, you’re not expelling it. You’re relinquishing the element of control - like hey, you could just not piss for years, right?
When it stops being “yours” isn’t relevant. Or rather, it’s only relevant to when they can or can’t discern specific behavior from you. Again, you shred it, they can put it back together – it’s the information and information about your behavior that is forever yours – not the actual document or garbage.
I think the right to be secure in one’s person extends to being secure in not having one’s behavior reconstructed or extrapolated from one’s own supposed waste. Indeed, I’d think the 5th would cover that (the right to not be compelled to incriminate yourself).

But again – it might be worth it to overrule that right in limited circumstances. Maybe it could be treated as "plain sight" laws. Dunno. Is there some urgency to looking in someone's garbage? Or some special circumstances? I really have no idea.
But I’d feel better about it if there was judicial oversight and they had to get a warrant, same as if they wanted to search your house.
posted by Smedleyman at 1:51 PM on April 10, 2009 [1 favorite]


These municipal code is written to protect public health, not to ensure your privacy rights. Buying white trash bags and closing the top of the bag do not establish you desire to keep the contents of the trash private - those actions again are complying with a public health ordinance. The container is closed to keep vermin from getting into your trash, again a public health concern, not something the city thought up to protect your privacy.

And absent municipal codes, placing the garbage in a closed container means what? Simply because municipal codes have similar conditions does not negate my intent of maintaining privacy. It just seems like this kind of reasoning prefers to assume in favor of state's interest over individual privacy rights without any compelling justification.

If you have incriminating material you wish to dispose of then you should have the intelligence to do that in a way that doesn't land your ass in jail.

This isn't about incriminating material. It's about privacy rights. Privacy rights are not solely the concern of stupid criminals who don't know how to dispose of incriminating evidence.

As stated before dumpster diving is a good thing for investigative journalists too.

The privacy rights of everyone are not subject to arbitrary value judgements about how they might affect journalists.

Laws shouldn't be expanded to protect stupid people who engage in criminal acts.

I think the law should not be used to make individual rights less important than the state's interest in pursuing criminals as a matter of course. There are times when state's interest outweighs an individual's privacy but these must be compelling. Presenting a convenience to law enforcement is not compelling, especially considering the workaround is an insignificant added burden.

You keep harping on privacy rights but you give up privacy rights all the time.

It doesn't matter how many other instances there might be when I relinquish my privacy, voluntarily or involuntarily, if the state wants to add another burden on my privacy rights, they need to present a compelling argument that applies specifically to the issue at hand. Or should, to be more precise.

You have discarded, thrown away, abandoned, the items in question, you no longer exercise control or ownership of them.

Again, the point of "reasonable expectation of privacy" is not to protect property, per se, it's about protecting individuals.

So your indignation about someone going through your trash is pretty funny and quite a bit sad.

I don't see how this applies to the issue.
posted by effwerd at 2:27 PM on April 10, 2009


Effwerd,

Your individual crusade for the sanctity of your garbage and sweeping expansion and creation of "privacy rights" that do not and have not been recognized by the courts, but instead are as promulgated by effwerd, Lord all-knowing, grand Pooh bah of nothing are grounded in only in the space between your ears and not in case law.

You cannot bootstrap your irrational arguments for privacy to ordinances founded on public health.

So when you rule the wolrd you can make shit up however you want.

Until then and if you live in the US you will have to follow US laws - federal and state.

I may wish to smoke pot in front of a cop to show my religious devotion to Mickey Mouse but my sincere religious beliefs will not keep me from getting arrested.
posted by hooptycritter at 4:06 PM on April 10, 2009


What the hell?
posted by Smedleyman at 5:27 PM on April 10, 2009


Oaf,
I agree that the Canada court made an overreaching decision that contradicts much case law regarding private property and the expectation of privacy on that property.

My concerns are the folks who want to see never-ending property rights in items that they have discarded.

smedleyman,
If you are a closeted man or some other person with something to hide then figure it out.

Really, you and effwerd are asking for privacy rights that would impair both criminal and journalistic investigations. Take some responsibility for yourselves. If you have something you desperately want to hide then deal with it.

I am an out gay man who has no patience for arguments to protect the closeted and enable them to continue living some neurotic lie. Condoms can be flushed. So you are arguing about the need to protect what kind of person?

Please give me an example of an innocent person who has been entrapped by garbage searches.

What I hear you saying is that your privacy is sacrosanct and it is not. When you throw something away you have shown your express desire to relinquish interest in that object. If you are worried about that then take responsibility and do something else with your property.
Again the law is not designed to protect the stupid or easily embarrassed from incriminating or embarrassing themselves.
posted by hooptycritter at 6:02 PM on April 10, 2009


"If you are a closeted man or some other person with something to hide then figure it out."
The point is - exactly - that I've got nothing to hide. It's merely a matter of dignity. I have had hemorrhoids on occasion (MREs) not something I generally want made public. Nothing illegal about it though, far as I know. I buy some sex toys for my wife and I, who's business is that of anyone's?

"I am an out gay man who has no patience for arguments to protect the closeted and enable them to continue living some neurotic lie."
And strangely as a completely heterosexual man I'm more aware of the beatinghomosexuals have taken in certain areas in this country and understand the need for the "neurotic lie" in some quarters. As a matter of fact I've served with homosexual personnel and I have seen effective service members lost, marginalize, refused promotion, only because of silly policies. So yeah, it does matter to me.

"Really, you and effwerd are asking for privacy rights that would impair both criminal and journalistic investigations. "

Really I'm not. Really, you should read what I write instead or really hearing what you think you want to hear that privacy is sacrosanct.
Really I wrote: "I don’t know that I have an opinion on this either way. I mean in terms of efficacy in fighting crime and whether it’s worth it to give this power to law enforcement or not. Maybe it is. But let’s be clear as to what it is we’re talking about."

Because really, what I'm talking about is not the object that is thrown away but the information concerning your life that can be discerned from it. The mere existence of credit card numbers proves that. When do I stop personally owning and claiming exclusivity to my bank account and credit card numbers?
Is it when I throw out a piece of paper with those numbers on there? No, of course not. Stupid thing to do, but then, the law IS in fact designed to protect the stupid. It's why we have fire departments and paramedics. It's why so many people die in slips and falls at home. People are stupid sometimes. Doesn't mean you cast them to the wolves.

And I addressed what happens if you "do something else with your property."
You shred something. The police can, or can access the resources to, reconstruct it. Clearly you meant to destroy it. And yet, they can recover it.

One can make an argument that perhaps you should take greater pains to destroy something. But now we're merely talking the degree of effort I have to expend to make sure something is private versus the ability of the state, or individual police officers, to investigate people.

Is the investigation arbitrary? Can the police just stop at someone's house and look through someone's garbage at random? Can a cop check his neighbor's garbage every day?
I don't know. What I do know is I would like the same judicial oversight to insure accountability that we have for home searches. Perhaps at a lower threshold or something.

But that is a value judgment. And I haven't thought about this enough to have an opinion. Maybe it's worth the trade off in privacy for that latitude for the police. I don't know. Personally I'd subject it to analysis and see how effective it is. If it's very effective at shutting down criminals I'd probably back it. But then, criminals would adapt. Or at least the smart ones would. And then you still have a law potentially subject to abuse.
So maybe repeal it, wait, let the criminals get complacent, then put it back on the books.
Really, I don't know. Just speculation. But again, I'd like someone watching over the police who is outside the law enforcement branch to make sure they're not harassing innocent people or abusing their privilege.

I will say though this impairing "journalistic" investigation is horse shit. If I sift through your garbage and ferret out some personal information about you and get your credit card numbers (perhaps you could make a mistake once in your life? Maybe?) and someone sees me - who's to say I'm not a journalist instead of a thief? But hell - who's to say a journalist won't rip off your credit card information? They're human too.
And who can STOP me from rooting through your garbage? The police? Ok, then it's purely a police decision then, isn't it?

But can the cocky fucking attitude. Ok, I'm not the nicest guy in the world, you have a beef with me it's probably a legitimate gripe, I lose my head sometimes, but Effwerd (et.al) has been nothing but nice and patient with you. So you cut the shit, I'll cut the shit and we'll all talk nice, ok?
posted by Smedleyman at 11:48 PM on April 10, 2009


Please give me a real life, concrete example of an innocent person who has been entrapped by garbage searches.

So far you are listing wild hypotheticals. Gay bashers do not go through peoples trash to find victims - Matt Shepard, all the attacks in my city, NYC, and in most other places have been based on the victims perceived orientation.

If you cannot figure out how to dispose safely of credit cards, tax information etc, that is not an argument for expanding laws, it is an argument for doing some basic due diligence on disposing of confidential information.

Until you can provide concrete proof of injury you really don't have an argument.
posted by hooptycritter at 3:42 AM on April 11, 2009


I also do not believe you have an expectation of privacy in your garbage once you put in on the curb. However, since that's not how it works here, that's not how I play.


But again, I'd like someone watching over the police who is outside the law enforcement branch to make sure they're not harassing innocent people or abusing their privilege.

Really? We're talking about garbage here. No decent police officer out there is going to root through someone's trash to harass them.
posted by C17H19NO3 at 11:27 AM on April 11, 2009


"No decent police officer out there is going to root through someone's trash to harass them."

Obviously. And no decent police officer would lock someone in a room and beat a false confession out of them. No decent police officer would abuse the public trust by "investigating" prostitutes on public time. We have oversight to insure police officers remain decent and properly uphold the law while respecting people's rights.


"Until you can provide concrete proof of injury you really don't have an argument."

Well again, and I believe I've been crystal clear on this - I'm not contesting the main point, so no, I don't really have an argument anyway.
I'm merely pointing out the distinction between the garbage itself and the information the garbage carries. Injury could not possibly be done by someone merely taking or examining the garbage. What's at stake is the personal information.
So I'm clarifying that the debate is not about the garbage - tin cans, papers, coffee grounds, etc - which is what someone is getting rid of, relinquishing possession of, but rather their personal information, which could be a credit card number or something indicative of their private life.

You're argument is that it's worth it for society to have police officers to have the power to go through garbage. I'm not contesting that.

"If you cannot figure out how to dispose safely of credit cards, tax information etc, that is not an argument for expanding laws, it is an argument for doing some basic due diligence on disposing of confidential information."

You seem to have missed my point. I'm not arguing people who can't figure out how to dispose of their tax information need to have laws passed to protect them from not doing due diligence.

I'm saying someone could do due dilligence as a matter of course - that is - they could shred their records. They could in fact nearly pulverize them. And the police - or anyone else really - could, with enough time and resources, recover that information.
That is to illustrate the difference between throwing out the material and the intention to keep information private.
And that raises the question - is there no point at which someone's indication that they want information kept private, but wish to dispose of the material it's on, is respected?
You seem to be saying, no there isn't. Or at least you're implying that the threshold is very high. That is - they should burn their materials. I disagree with setting the bar that high generally speaking. Some tasks should be automated without you having to worry about them, and the government is that kind of machine. It's easier to spread the work around so not everyone has to take their own garbage to the dump, pave the road in front of their house, etc.

But that's a broader philosophical point. I bring that perspective to this discussion, but I'm fairly ambivalent on this particular topic (cops searching garbage).
Maybe it'll help them crack a case. I don't know.
I'm just saying it's not the material, it's the information, and there's no point at which an individual relinquishes his/her right to that information in the act of throwing out the trash.
Now - if it is in the trash, can that info be used for a legitimate law enforcement investigation?
Courts have ruled yes. Not sure I agree, but I don't know enough either way to have a solid opinion.
You keep demanding proof of harm. I don't see it that way. Being an American we have the 10th amendment, so any rights not spelled out as given to the government aren't there - they're in the hands of the people. So I err on the side of looking at it from a practical "how well does it work for law enforcement" perspective.
But again, I have no clue on that. So I can't argue it either way.
posted by Smedleyman at 5:32 PM on April 11, 2009


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