[declan at well.com: [Politech] Montana Supreme Court justice warns Orwell's 1984 has arrived [priv]]

[Tyler Durden]

Holy Fuck we need some smarter people in this society.

OK, you threw away your trash. I see no inherent reason why someone else 
can't grab it. But INFORMATION about you isn't trash. Then again, you do 
"throw away" the photons that exit through your windows, so I guess cops 
should be able to stare at you through binoculars all the time and haul you 
in based on the photons you've thrown away.

Oh, and to take it further, police should have immediate, un-warranted 
access to the "trashcan" on your computer, at all times. Indeed, there 
should be a registry that constantly monitors what you're throwing away, 
because it's just (digital) trash, right?

As for crystal meth, I know I'm preaching to the choir here, but if I want 
to pour something from my chemistry set down my throat that shouldn't be 
anybody's business. The fact that it doesn't accidentally kill me and indeed 
gives me a buzz shouldn't be the sole provence of the pharmaceutical 
companies. After that, if you want to make laws about selling the stuff well 
that's a different matter.

-TD


>From: Eugen Leitl <eugen at leitl.org>
>To: cypherpunks at jfet.org
>Subject: [declan at well.com: [Politech] Montana Supreme Court justice  warns 
>Orwell's 1984 has arrived [priv]]
>Date: Fri, 19 Aug 2005 21:55:41 +0200
>
>----- Forwarded message from Declan McCullagh <declan at well.com> -----
>
>From: Declan McCullagh <declan at well.com>
>Date: Fri, 05 Aug 2005 12:20:34 -0700
>To: politech at politechbot.com
>Subject: [Politech] Montana Supreme Court justice warns Orwell's 1984 has
>	arrived [priv]
>User-Agent: Mozilla Thunderbird 1.0.2 (Macintosh/20050317)
>
>
>
>http://news.com.com/2061-10796_3-5820618.html
>
>Montana Supreme Court justice warns Orwell's 1984 has arrived
>August 5, 2005 12:13 PM PDT
>
>Believe it or not, it's perfectly legal for police to rummage through
>your garbage for incriminating stuff on you -- even if they don't have a
>warrant or court approval.
>
>The Supreme Court of Montana ruled last month that police could conduct
>a warrantless "trash dive" into the trash cans in the alley behind the
>home of a man named Darrell Pelvit. The cops discovered pseudoephedrine
>boxes -- a solvent with uses including the manufacture of
>methamphetamine -- and Pelvit eventually ended up in prison.
>
>Pelvit's attorney argued that his client had a reasonable expectation of
>privacy in his trash, but the court rejected the argument and said the
>trash was, well, meant to be thrown away.
>
>What's remarkable is the concurring opinion of Montana Supreme Court
>Justice James C. Nelson, who reluctantly went along with his colleagues
>but warned that George Orwell's 1984 had arrived. We reproduce his
>concurring opinion in full:
>
>-Declan
>
>--------------
>
>Justice James C. Nelson concurs.
>
>I have signed our Opinion because we have correctly applied existing
>legal theory and constitutional jurisprudence to resolve this case on
>its facts.
>
>I feel the pain of conflict, however. I fear that, eventually, we are
>all going to become collateral damage in the war on drugs, or terrorism,
>or whatever war is in vogue at the moment. I retain an abiding concern
>that our Declaration of Rights not be killed by friendly fire. And, in
>this day and age, the courts are the last, if not only, bulwark to
>prevent that from happening.
>
>In truth, though, we area throw-away society. My garbage can contains
>the remains of what I eat and drink. It may contain discarded credit
>card receipts along with yesterday's newspaper and junk mail. It might
>hold some personal letters, bills, receipts, vouchers, medical records,
>photographs and stuff that is imprinted with the multitude of assigned
>numbers that allow me access to the global economy and vice versa.
>
>My garbage can contains my DNA.
>
>As our Opinion states, what we voluntarily throw away, what we
>discard--i.e., what we abandon--is fair game for roving animals,
>scavengers, busybodies, crooks and for those seeking evidence of
>criminal enterprise.
>
>Yet, as I expect with most people, when I take the day's trash (neatly
>packaged in opaque plastic bags) to the garbage can each night, I give
>little consideration to what I am throwing away and less thought, still,
>to what might become of my refuse. I don't necessarily envision that
>someone or something is going to paw through it looking for a morsel of
>food, a discarded treasure, a stealable part of my identity or a piece
>of evidence. But, I've seen that happen enough times to
>understand--though not graciously accept--that there is nothing sacred
>in whatever privacy interest I think I have retained in my trash once it
>leaves my control--the Fourth Amendment and Article II, Sections 10 and
>11, notwithstanding.
>
>Like it or not, I live in a society that accepts virtual strip searches
>at airports; surveillance cameras; "discount" cards that record my
>buying habits; bar codes; "cookies" and spywear on my computer; on-line
>access to satellite technology that can image my back yard; and
>microchip radio frequency identification devices already implanted in
>the family dog and soon to be integrated into my groceries, my credit
>cards, my cash and my new underwear.
>
>I know that the notes from the visit to my doctor's office may be
>transcribed in some overseas country under an out-sourcing contract by a
>person who couldn't care less about my privacy. I know that there are
>all sorts of businesses that have records of what medications I take and
>why. I know that information taken from my blood sample may wind up in
>databases and be put to uses that the boilerplate on the sheaf of papers
>I sign to get medical treatment doesn't even begin to disclose. I know
>that my insurance companies and employer know more about me than does my
>mother. I know that many aspects of my life are available on the
>Internet. Even a black box in my car--or event data recorder as they are
>called--is ready and willing to spill the beans on my driving habits, if
>I have an event--and I really trusted that car, too.
>
>And, I also know that my most unwelcome and paternalistic relative,
>Uncle Sam, is with me from womb to tomb. Fueled by the paranoia of
>"ists" and "isms," Sam has the capability of spying on everything and
>everybody--and no doubt is. But, as Sam says: "It's for my own good."
>
>In short, I know that my personal information is recorded in databases,
>servers, hard drives and file cabinets all over the world. I know that
>these portals to the most intimate details of my life are restricted
>only by the degree of sophistication and goodwill or malevolence of the
>person, institution, corporation or government that wants access to my 
>data.
>
>I also know that much of my life can be reconstructed from the contents
>of my garbage can.
>
>I don't like living in Orwell's 1984; but I do. And, absent the next
>extinction event or civil libertarians taking charge of the government
>(the former being more likely than the latter), the best we can do is
>try to keep Sam and the sub-Sams on a short leash.
>
>As our Opinion states, search and seizure jurisprudence is centered
>around privacy expectations and reasonableness considerations. That is
>true even under the extended protections afforded by Montana's
>Constitution, Article II, Sections 10. and 11. We have ruled within
>those parameters. And, as is often the case, we have had to draw a fine
>line in a gray area. Justice Cotter and those who have signed the
>Opinion worked hard at defining that line; and I am satisfied we've
>drawn it correctly on the facts of this case and under the conventional
>law of abandonment.
>
>That said, if this Opinion is used to justify a sweep of the trash cans
>of a neighborhood or community; or if a trash dive for Sudafed boxes and
>matchbooks results in DNA or fingerprints being added to a forensic
>database or results in personal or business records, credit card
>receipts, personal correspondence or other property being archived for
>some future use unrelated to the case at hand, then, absent a search
>warrant, I may well reconsider my legal position and approach to these
>sorts of cases--even if I have to think outside the garbage can to get
>there.
>
>I concur.
>/S/ JAMES C. NELSON
>_______________________________________________
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>Moderated by Declan McCullagh (http://www.mccullagh.org/)
>
>----- End forwarded message -----
>
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