Expectation of privacy in public?

[Aimee Farr]

Under the California statute, a conversation in which the parties have no
expectation that the discussion would not be disclosed to others is not
confidential. Cal. Penal Code. Sect.632(a). "Confidentiality" has been
construed in California to mean "a reasonable expectation that the content
of the communication has been entrusted privately to the listener." Deteresa
v. American Braodcasting Co. 121 F.3d 460, 464 (9th Cir. 1997, cert. denied,
118 S. Ct. 1840 (1998).

Oral Communication under Title I (of "Title III" or the ECPA) incorporates
the Katz test. The Katz test is two-pronged: (1) the person challenging must
exhibit an expectation of privacy [subjective] and (2) that person must also
be justified in that expectation [objective]. If both prongs are not met,
the conversation is not protected under the constitution against warrantless
surveillance.

Senate Report 1097: neither the speakers intention to talk in confidence nor
the location of where the conversation happened controls the determination
of whether or not he reasonably expected he could not or would not be
overheard. The factors that might be considered in regard to the first prong
are: precautions taken, content, purpose, etc. Therefore, words a person
knowingly "puts to the public," possibly even in your home, can be outside
of the Fourth Amendment and Title III. However, it's a very contextual
determination.

Often, the courts use the rationale that because you have no reason to
believe your conversation is not being overheard, you have no reason to
believe you are not being recorded. See In re Johen Doe Trader No. One, 894
F.2d 240, 243 (7th Cir. 1990)(recording on floor of commodities exchange).
They could also make the analogy to a visitor of a bugged house, such as
United States v. Flemmi, 225 F.3d 78 (1st Cir. 2000). However, the mere fact
that the conversation is on government premises does not affect an
expectation of privacy. United States v. Jackson, 588 F.2d 1046, 1052 (5th
Cir. 1979)....and a bunch more after that.

Blah, blah, more than you wanted to know.

~Aimee

> -----Original Message-----
> From: owner-cypherpunks at lne.com [mailto:owner-cypherpunks at lne.com]On
> Behalf Of Trei, Peter
> Sent: Monday, September 24, 2001 12:25 PM
> To: cypherpunks at lne.com
> Subject: RE: Expectation of privacy in public?
>
>
> > Anonymous[SMTP:nobody at remailer.privacy.at]
> >
> >
> > For the lawyers and lawyer larvae out there...
> >
> > In an article in the San Francisco Bay Guardian this week, there is an
> > article about MUNI's policy of making audio recordings of passengers.
> >
> > <quote>
> > Nathan Ballard of the City Attorney's Office told the Bay Guardian that
> > they were well aware of the policy and approved it. "There are no
> > expectations of privacy in public," he said. Ballard asserted that the
> > policy was constitutional and did not fall under any wiretapping laws.
> > When asked if all of the vehicles that employ this surveillance policy
> > post signs to inform passengers that their conversations are being
> > recorded, he said, "This policy does not require signs."
> > </quote>
> >
> > Frankly, if I'm sitting in the back of an empty bus, talking to
> the person
> > next to me, it's my opinion that there certainly is a
> reasonable expection
> > of privacy. Does anyone more qualified than I care to tell me why I'm
> > right or wrong?
> >
> > Legal or not, I'm also curious to see what the EFF has to say about this
> > wonderful incarnation of Big Brother.
> >
> > http://www.sfbg.com/SFLife/35/51/cult.html
> >
> MUNI is breaking the law.
> http://www.rcfp.org/taping/
> Peter Trei
> ---------------------------