Re: Expectation of privacy in public?
on Mon, Sep 24, 2001 at 07:16:03AM +0200, Anonymous ([EMAIL PROTECTED]) wrote: 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? Jeffrey Rosen's _The Unwanted Gaze: the destruction of privacy in America_ is a good general read on this topic, and is generally recommended. It doesn't cover the issue of privacy in public in depth, though the issue is really more one of moving anonymously (or at least largely unrecorded) through public spaces. Rosen does discuss privacy at home and at work, and in cyberspace. The index doesn't specifically list public spaces, though there's some discussion of anonymity. Brandeis and Warren wrote a law review article in 1890 in the _Harvard Law Review_. Rosen does touch on expectations of privacy in public spaces: In _The Unbearable Lightness of Being, Milan Kundera describes how the police destroyed an important figure of the Prague Spring by recording his conversations with a friend and then broadcasting them as a radio serial. The other interesting discussion is of the Olmstead case (the original wiretap case). I would raise objections on the basis of the Fourth and Forteenth Amendments. Peace. -- Karsten M. Self [EMAIL PROTECTED]http://kmself.home.netcom.com/ What part of Gestalt don't you understand? Home of the brave http://gestalt-system.sourceforge.net/Land of the free Free Dmitry! Boycott Adobe! Repeal the DMCA! http://www.freesklyarov.org Geek for Hire http://kmself.home.netcom.com/resume.html [demime 0.97c removed an attachment of type application/pgp-signature]
RE: Expectation of privacy in public?
Anonymous[SMTP:[EMAIL PROTECTED]] 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 --- Cal. Penal Code ' 631, 632 (Deering 1999): It is a crime in California to intercept or eavesdrop upon any confidential communication, including a telephone call or wire communication, without the consent of all parties. It is also a crime to disclose information obtained from such an interception. A first offense is punishable by a fine of up to $2,500 and imprisonment for no more than one year. Subsequent offenses carry a maximum fine of $10,000 and jail sentence of up to one year. Eavesdropping upon or recording a conversation, whether by telephone (including cordless or cellular telephone) or in person, that a person would reasonably expect to be confined to the parties present, carries the same penalty as intercepting telephone or wire communications. Conversations occurring at any public gathering that one should expect to be overheard, including any legislative, judicial or executive proceeding open to the public, are not covered by the law. Anyone injured by a violation of the wiretapping laws can recover civil damages of $5,000 or three times actual damages, whichever is greater. Cal. Penal Code ' 637.2(a) (Deering 1999). An appellate court has ruled that using a hidden video camera violates the statute. California v. Gibbons, 215 Cal. App. 3d 1204 (1989). --
Re: RE: Expectation of privacy in public?
On 24 Sep 2001, at 17:49, Robert wrote: Cal. Penal Code ' 631, 632 (Deering 1999): It is a crime in California to intercept or eavesdrop upon any confidential communication, including a telephone call or wire communication, without the consent of all parties. It is not a crime for an agency of another country to eavesdrop on you as long as they are physically located outside the U.S. Similarly, it is not illegal for a US agency to intercept messages in another country, as long as they do it from outside the that country. You're on crack. The anti-eavsdropping laws don't have exemptions for agents of foreign governments, the suggestion is absurd. This is how (if it really does exist) the Echelon network works. Agencies in Canada, England, Australia etc. intercept messages in the U.S. and then pass on the intelligence to their U.S. counterparts. This information sharing by-passes legal jurisdictional limits. Except that it doesn't. It's not a violation of US law for US agents to spy on people in Australia, but it's almost certainly a violation of Australian law. Similarly, it's probably not a violation of Australian law for Australian agents to eavsdrop on people in California, but it's clearly a violation of California law. George Robert Andrews Is your personal data exposed? http://www.PrivacyExposed.com
RE: Expectation of privacy in public?
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: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]]On Behalf Of Trei, Peter Sent: Monday, September 24, 2001 12:25 PM To: [EMAIL PROTECTED] Subject: RE: Expectation of privacy in public? Anonymous[SMTP:[EMAIL PROTECTED]] 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 ---
