Congress Starts to Get Serious About Online Privacy
I know that the HN crowd supports this, but it can be a nightmare for a criminal defense attorney attempting to acquire exculpatory information. Remember, whenever a warrant is required to get data, that means the defendant cannot get stored data through ANY legal process. Thus by passing such a law, prosecutors and police can always get the data, but defense attorneys can never get the data.<p>For example: I’m the victim of an unprovoked attack and beat up by four men. One of the men records the attack and uploads the video to facebook, He makes it private, but shares it with a few friends to shame me. In the attack, I try to defend myself but am only able to get in a few hits on one of the men. The man that I hit goes to the police and accuses me of battery. I’m arrested and charged by a prosecutor for battery. I plan to claim self-defense at trial. I try to collect as much evidence as I can on my behalf.<p>With a warrant requirement, the video that I know exist on facebook which would show that these men beat me in an unprovoked attack and would certainly lead to a not guilty verdict is now completely inaccessible to me or my attorney. Think about that for a minute. And, as you probably know from watching Making a Murderer, the police have no duty to investigate potentially exculpatory information.<p>I’m not saying that a warrant requirement for stored data is a bad idea. But the ups and downs need to be considered. I never see anyone present the downsides that I present here. I’ve brought it up before on HN before and got very little attention. <a href="https:&#x2F;&#x2F;news.ycombinator.com&#x2F;item?id=10066879" rel="nofollow">https:&#x2F;&#x2F;news.ycombinator.com&#x2F;item?id=10066879</a>.
No one will care until innocent people are convicted. I wish tech and legal people would work together on this to prevent the perverse consequences.<p>Here is an example of this happening: Facebook v. Superior Court: <a href="http:&#x2F;&#x2F;www.courts.ca.gov&#x2F;opinions&#x2F;documents&#x2F;A144315.PDF" rel="nofollow">http:&#x2F;&#x2F;www.courts.ca.gov&#x2F;opinions&#x2F;documents&#x2F;A144315.PDF</a>
(This case is currently being reviewed by the CA Supreme Court.)<p>Here is a law review article on point:
<a href="http:&#x2F;&#x2F;scholarlycommons.law.northwestern.edu&#x2F;cgi&#x2F;viewcontent.cgi?article=7263&amp;context=jclc" rel="nofollow">http:&#x2F;&#x2F;scholarlycommons.law.northwestern.edu&#x2F;cgi&#x2F;viewcontent...</a><p>My background: California attorney for 7 years. Prosecutor for 4 1&#x2F;2 years, defense attorney for 2 1&#x2F;2 years. Tech savvy for a lawyer - Associates degree in Computer Science.<p>Edit 1: added link to law review article.
Edit 2: added my background.
Edit 3: added link to Facebook v. Superior Court.