The Fourth Amendment Limits of Internet Content Preservation
April 1, 2022 4:00 AM Subscribe
Every year, hundreds of thousands of Internet accounts are copied and set
aside by Internet providers on behalf of federal and state law enforcement. This
process, known as preservation, ordinarily occurs without particularized
suspicion.... the preservation process is largely secret.
Orin Kerr writes a persuasive paper arguing that current internet content preservation practices violate fundamental Fourth Amendment rights. He is drafting a personalize-and-file sample motion to suppress that he hopes will be adopted by defense attorneys.
Kerr is measured and passionate in equal measure on the issue. His admonition that “most lawyers are leaving this on the table” is telling, I think, to either the lack of expertise in this area of law, or a lack of confidence to tread into these largely unchallenged waters. I hope he is successful in prompting more defense attorneys to question the validity of preservation-derived evidence.
posted by Silvery Fish at 12:02 PM on April 1, 2022
posted by Silvery Fish at 12:02 PM on April 1, 2022
>the lack of expertise in this area of law
Well just wait until some young tech-savvy lawyer files the motion! And it gets decided by a 75-year-old judge whose sole use of the computer is telling his administrative assistant to print out any emails someone is clueless enough to send to his chambers...
In all seriousness, I'm happy that Orin Kerr is mapping this ground and giving a leg up to defense attorneys who want to go there. And I agree, he comes off as a very reasonable, measured, thoughtful guy. Unfortunately, I'll never be able to look past the fact that he's given money to the likes of Ted Cruz and Tom Cotton.
posted by mikeand1 at 12:15 PM on April 1, 2022 [3 favorites]
Well just wait until some young tech-savvy lawyer files the motion! And it gets decided by a 75-year-old judge whose sole use of the computer is telling his administrative assistant to print out any emails someone is clueless enough to send to his chambers...
In all seriousness, I'm happy that Orin Kerr is mapping this ground and giving a leg up to defense attorneys who want to go there. And I agree, he comes off as a very reasonable, measured, thoughtful guy. Unfortunately, I'll never be able to look past the fact that he's given money to the likes of Ted Cruz and Tom Cotton.
posted by mikeand1 at 12:15 PM on April 1, 2022 [3 favorites]
And it gets decided by a 75-year-old judge whose sole use of the computer is telling his administrative assistant to print out any emails someone is clueless enough to send to his chambers...
I think this may be true in some cases, but please don’t throw facile and unsupported assumptions into important - well, any - argument. Justice Breyer, for example, taught himself how to code - in his 80s - to better understand the arguments brought before the court. There are many dedicated jurists who take their job seriously and understand the limits of their own experience and actively try to mitigate their own experiential short-comings. Governor Cox of Utah is a more recent example of this.
Your points about his political sponsorship means that I will not join him as a political ally. But that’s the great thing about Constitutional rights: they are there to protect individuals, agnostic of party affiliation. We may not agree on where we want the country to go, but we certainly can agree on the methods any person in a position of power and authority is allowed to take to get there.
posted by Silvery Fish at 6:04 AM on April 2, 2022 [1 favorite]
I think this may be true in some cases, but please don’t throw facile and unsupported assumptions into important - well, any - argument. Justice Breyer, for example, taught himself how to code - in his 80s - to better understand the arguments brought before the court. There are many dedicated jurists who take their job seriously and understand the limits of their own experience and actively try to mitigate their own experiential short-comings. Governor Cox of Utah is a more recent example of this.
Your points about his political sponsorship means that I will not join him as a political ally. But that’s the great thing about Constitutional rights: they are there to protect individuals, agnostic of party affiliation. We may not agree on where we want the country to go, but we certainly can agree on the methods any person in a position of power and authority is allowed to take to get there.
posted by Silvery Fish at 6:04 AM on April 2, 2022 [1 favorite]
>facile and unsupported assumptions
I clerked for a federal judge who did that.
It was a bit of a joke though. I know very well not all judges are the same. I also clerked for a federal judge who was coding complex programs back in the 80s.
On the whole, the judiciary is pretty old and very out of date when it comes to tech (and other issues). It's an issue I think about a lot. In my view, one of the biggest problems facing the entire legal world is that the law changes very slowly, while the world is changing super fast. Courts are on the verge of rendering themselves irrelevant in many ways.
posted by mikeand1 at 11:09 AM on April 2, 2022 [1 favorite]
I clerked for a federal judge who did that.
It was a bit of a joke though. I know very well not all judges are the same. I also clerked for a federal judge who was coding complex programs back in the 80s.
On the whole, the judiciary is pretty old and very out of date when it comes to tech (and other issues). It's an issue I think about a lot. In my view, one of the biggest problems facing the entire legal world is that the law changes very slowly, while the world is changing super fast. Courts are on the verge of rendering themselves irrelevant in many ways.
posted by mikeand1 at 11:09 AM on April 2, 2022 [1 favorite]
On the whole, the judiciary is pretty old and very out of date when it comes to tech (and other issues). It's an issue I think about a lot.
I think about it a lot, too - and a very close family member was a federal judge, so I am familiar with the personality type and similar considerations.
We definitely need more judges, and yes - focus on younger judges, and choose equally from experienced prosecutors AND defense attorneys. The courts are heavily weighted toward former prosecutors, which in my opinion is an error.
And we need better mechanisms for removing exceptionally biased or, well, old judges. I understand that absolute love of the law, and wanting to continue, but in all of my aging relatives, I’ve noted a point where they lose the ability to fully embrace the nuances of changed culture or changed social (non-white-cis-het-male) circumstances or standards.
It’s nice to learn that you are part of the extended judicial “family.” Your original argument was still facile. ;)
posted by Silvery Fish at 12:04 PM on April 2, 2022
I think about it a lot, too - and a very close family member was a federal judge, so I am familiar with the personality type and similar considerations.
We definitely need more judges, and yes - focus on younger judges, and choose equally from experienced prosecutors AND defense attorneys. The courts are heavily weighted toward former prosecutors, which in my opinion is an error.
And we need better mechanisms for removing exceptionally biased or, well, old judges. I understand that absolute love of the law, and wanting to continue, but in all of my aging relatives, I’ve noted a point where they lose the ability to fully embrace the nuances of changed culture or changed social (non-white-cis-het-male) circumstances or standards.
It’s nice to learn that you are part of the extended judicial “family.” Your original argument was still facile. ;)
posted by Silvery Fish at 12:04 PM on April 2, 2022
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posted by potrzebie at 11:24 AM on April 1, 2022 [1 favorite]