Obama Administration Argues For “Orwellian” New Powers To Track U.S. Citizens

As discussed in a prior column, many civil libertarians view President Barack Obama as betraying core civil liberties in expanding on Bush-era surveillance programs, secrecy orders, and other measures. Now, even conservative justices are questioning the Administration’s demand to be able to engage in round-the-clock surveillance of citizens without a warrant using GPS technology. The sweeping new claim would gut the protections of the Fourth Amendment in the latest attack on civil liberties by Barack Obama.

In the United States v. Jones (10-1259) case oral argument, Justice Stephen Breyer correctly noted “If you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States. So if you win, you suddenly produce what sounds like 1984 from their brief.” Even Chief Justice John Roberts who is often criticized for turning a blind eye to government intrusions raised concerns that the GPS surveillance would fundamentally alter the balance between citizens and police.

U.S. Deputy Solicitor General Michael Dreeben response was classic: don’t worry about the Constitution just rely on Congress to pass a law if we go to far. Congress, of course, has historically cared little about civil liberties and the Administration’s position would leave core liberties as simple matters for political voting.

Despite the growing opposition from civil libertarians who have vowed not to support his reelection, Obama appears to be doubling down on increasing police powers and limiting civil liberties. The Jones case represents an utter disregard for privacy and constitutional protections in favor of further increasing the already disturbing level of police powers in our society.

The case is particularly interesting because of the use of the Katz v. United States, 389 U.S. 347, 351 (1967). The government argues that there is no reasonable expectation of privacy because of the availability of GPS technology. For years, I have argued that our privacy rests on an increasingly uncertain foundation. When it was first handed down, Katz was a magnificent affirmation of privacy — declaring the Fourth Amendment “protects people not places.” However, the Court tied the protection to the “reasonable expectations” of citizens. As those expectations fall, the ability of the government to act without a warrant increases . . . which results in expectations again falling. The result is a downward spiral. The Administration is now playing on that weakness to argue for a broad new power of surveillance.

Source: The Hill

56 thoughts on “Obama Administration Argues For “Orwellian” New Powers To Track U.S. Citizens

  1. Our lizard overlords chose their lackey well. The face of Obama allows every injustice to go unchallenged. Fortunately, many people are waking up to the fact that wrong is wrong. There is a call to occupy the presidential caucuses and this should be done. It is unconscionable to allow these actions to go unchallenged.

    This is it. Either people pull their head out of the sand and take on the police state or they happily consign others to be harmed by it.

  2. GPS is antiquated technology. Kagan and Breyer, I think, had it right when they mentioned that in the future, an intrusive technology like GPS won’t be required.


    We have Automatic License Plate Recognition being deployed in every police car, and mounted on every toll booth and in parking lots. There are devices known as STINGRAYs that can be used to spoof a cellphone tower, and thus aid in tracking a cellphone. And it will probably become easy to track many of the pieces of DNA that comes off a person, hair, cells as they walk down the streets.

    The police won’t need GPS to track people. So if we can’t find a right to this sort of privacy in the constitution, then what will have happened is that we will have allowed technology to obsolete the Bill of Rights.

    What I find amusing/sardonic is how the fine libertarian professor, Orin Kerr of the Volokh Conspiracy seems okay with this situation and seems to argue that yep, it’s not in the constitution, end of story.

  3. Oh yeahs, and of course in addition to ALPR, and STINGRAY, there will also be lots of photo recognition.

    Governor and DHS Secretary Janet Napolitano was in favor of putting photo radar on every freeway, but in addition, she wanted automatic photo recognition technology placed at the border between Arizona and her neighbor states. (http://terrorism.about.com/od/usforeignpolicy/a/Napolitano.htm)

    And of course, let’s not forget the drive to put RFID chips into passports and driver’s licenses.

    Why would the police bother with anything as intrusive as GPS?

    Why would either an libertarian or an originalist think our Founders would be against this?

  4. anon did not mention face recognition technology. Look for your published photograph to be in the database. Those official ID photographs for your drivers license and passport are the original source documents to be on file. Every time you pass by a security camera, the potential for tracking is there. That does not even count the times investigators might take your picture at a rally, demonstration, or just walking down the street.

  5. This is not Alex Jones / Infowars conspiracy theory stuff — but our recent Administrations certainly seem eager to turn Alex Jones from nutcase with a microphone to the last sane man.

  6. Jill is correct — this is a pivotal decision — a pivotal moment… It’s imperative that we put the brakes on the encroaching police state or live to regret it.

  7. What Happened When I Tried to Get Some Answers About the Creepy NYPD Watchtower Monitoring OWS
    There’s a metal monster looming over Liberty Square, but don’t ask questions about it or else.
    November 6, 2011 |


    “LIBERTY SQUARE – The drummers drummed. The guitarists strummed. And the hearty souls building a new society in Lower Manhattan’s Zuccotti Park traded in their tarps for tents as the temperature dropped. All the while, Officer Guzman stood watch.

    But there was something special about Officer Guzman. He wasn’t one of the 25 police officers I counted standing on the perimeter of Liberty Square that first wintery day. He wasn’t one of dozens more shooting the breeze with their partners inside a police van or sitting alone in a cruiser texting. Officer Guzman spent the day suspended in the air, two stories up, at the corner of Trinity Place and Liberty Street, inside a little metal box that goes by the name Sky Watch.

    For the initiated, Sky Watch is like one of those mechanical forest walkers from the Star Wars movies without the lasers or the walking. Imagine an 7-foot by 6-foot metal box, with blacked out windows on its four sides, bristling with cameras, spotlights, and a small spinning anemometer (to calculate wind speed), atop spindly hydraulic legs that allow it to sit on the ground or rise up two stories. Inside that climate-controlled cube is a control panel with switches to turn on the lights, a joystick to raise and lower the unit, and various other remote controls that Officer Guzman or someone like him can use to direct the cameras and watch their feeds on video screens (while they are recorded on multiple digital video recorders).

    Also used by the U.S. military, from Marines in the tiny African nation of Djibouti to sailors at a Navy base in the United Arab Emirates, as well as police departments all around the U.S., the 8,000-plus pound Panopticon-like structure — originally used by hunters to shoot quarry from overhead — has become a favorite of those who are partial to coercive surveillance. As the company that makes them puts it, Sky Watch provides “the vantage point necessary for law enforcement officials to deploy their forces to the greatest effectiveness while simultaneously acting providing [sic] a continuous crime deterrent.”

    “We have cameras for everything”

    Officer Guzman seemed like the strong silent type. At least he looked strong. But what I can most vouch for was his silence. He preferred to let other officers speak for him.

    When a couple of “special” cops came to gas up Guzman’s Sky Watch tower, I called out a question about how frequently they needed to feed the mechanical beast. “I can’t tell you that information,” was the cold response I got from one of the policemen. As I scrawled down the terse reply and snapped a few photos, another strode over to the metal barricade I was leaning on. “What’s your name?” he asked.

    Nick, what’s yours?

    Anthony. What, are you writing a report?

    I’m a reporter.

    Do you have some ID that says you’re a reporter?

    Nah, you guys like badges, not me.

    As I produced a couple pieces of identification, I asked why he needed to see ID from someone asking an innocuous question while standing on a public sidewalk. “What interests me is that you’re taking information about our Sky Watch and asking questions about our Sky Watch so it makes me wonder why you’re doing it. I’d like to know that.”

    Then I asked to see his ID. “You have my ID,” he said. But I didn’t. He was a fancy cop. No badge and nameplate on his chest, so I insisted. “I don’t. I only know your name is Anthony.” To his credit, he produced some. Anthony Torres. Shield #14528. So I told him of my interest in Sky Watch and the mini-surveillance state the police had set up more generally. Why, I asked, did the NYPD need a Sky Watch surveillance unit on-site when they also had a permanent camera stationed across the street from the park, a surveillance truck up the street with a camera on a 20-foot pole, dozens of cops stationed on the park’s perimeter at all times and, no doubt, other less conspicuous methods to spy on a park, already surrounded by metal pens, filled with unarmed, nonviolent protesters?…”

  8. Hey, that is life in the greatest democracy in the history of the world, or is it?

    We now live in a society that believes, consistently over a period of years, that the most competent institution in America is the military, not the courts, the law schools, the congress, the universities, the churches, or the administration.

    How did that happen?

    It is time we look around to see the nation we actually live in, rather that fantasizing about what we wanted it to be, or still want it to be.

    You can’t repair a 49 Ford with 63 Chevy parts my friends, if you know what I mean.

  9. Dredd,

    I feel each of the institutions you mentioned have failed us. They are integral to the police state. They ceased to function as a fail safe or alternative to it (not all but most). Despite that, people are fighting back.

  10. GPS is antiquated technology. Kagan and Breyer, I think, had it right when they mentioned that in the future, an intrusive technology like GPS won’t be required.
    the technology is not the point. PRIVACY is the point. I have a right to have a private life, a private place, to move about in society unfettered by stalking and I don’t give a rats ass whose doing the stalking. How are other Countries handling this situation?

    hint: It would be easier to enforce Privacy Laws if our Government didn’t have it’s head up the Golden butt of Corporate interests….

  11. One other thing Big Brother has given us without telling you. Did you know that phosphorus and zinc are being removed from motor oils? Why, you ask? The official explanation is that it will reduce pollution and protect the catalytic converter. However, used motor oils are captured when oil is changed so it can be recycled, and catalytic converters have been used for decades with few problems.

    A more ominous explanation was given to me by my barber who is a serious antique automobile restorer. Some of his work has been featured on magazine covers. He tells me that older engines require higher levels of phosphorus and zinc in order to prevent spalling (metal on metal grinding) of the thrust bearings and tappets. He showed me several photographs of older engine bearings that had been ruined by the newer oils. He says the government and auto manufacturers want to ruin the older engines to get them off the road, so new engines/vehicles can be sold.

    If you have an older vehicle, you need to buy an oil additive that contains the proper amount of phosphorus and zinc in order to protect your engine bearings from the kinds of failure you see in the linked photo.


  12. Supreme Court questions warrantless GPS tracking
    Bloomberg Businessweek/AP

    The Supreme Court expressed deep reservations Tuesday about police use of GPS technology to track criminal suspects without a warrant.

    But the justices appeared unsettled about how or whether to regulate GPS tracking, and whether they should look at other high-tech surveillance techniques in resolving this case.

    The court heard arguments in the Obama administration’s appeal of a court ruling that threw out a drug conspiracy conviction against Antoine Jones. FBI agents and local police did not have a valid search warrant when they installed a GPS device on Jones’ car and collected travel information.

    The justices were taken aback when the lawyer representing the government said police officers could install GPS devices on the justices’ cars and track their movements without a warrant.

    The court has previously ruled there is no expectation of privacy on public roads. But that decision came in a 1983 case involving the use of beeper technology, which still required officers to follow the vehicle they were tracking.

    Justice Samuel Alito captured the essence of the court’s concern when he said, “With computers around, it’s now so simple to amass an enormous amount of information. How do we deal with this? Just say nothing has changed?”

    Chief Justice John Roberts drew a comparison with artwork to explain the power of GPS surveillance. “You’re talking about the difference between seeing a little tile and a mosaic,” Roberts said.

    Justice Department lawyer Michael Dreeben said it would be better for lawmakers rather than judges to set limits. Dreeben said the concerns expressed Tuesday were similar to those in the earlier high court case. Thirty years ago, Dreeben said, “Beeper technology seemed extraordinarily advanced.”

    He also sought to portray GPS use as one among many police tracking methods that do not call for a warrant. Police can go through people’s trash, obtain information about who they call, even follow them round-the-clock without a warrant, he said.

  13. This isn’t the action of one man. It’s far deeper than Bush or Obama or whoever is next in line to move to the White House.

    The gladiators have taken over the government and not finding enough terrorists outside our borders have decided to do what gladiators always do … wage war on their own people.

    The coup took place back in 2001 when all the people and all the politicians were running scared and so frightened that they willingly turned over their liberty to the goons in the shadows. The Patriot Act of Oct. 26, 2001 – The title of the act is a ten letter acronym (USA PATRIOT) that stands for Uniting (and) Strengthening America (by) Providing Appropriate Tools Required (to) Intercept (and) Obstruct Terrorism Act of 2001. The act also expanded the definition of terrorism to include domestic terrorism, thus enlarging the number of activities to which the USA PATRIOT Act’s expanded law enforcement powers can be applied.

    Partisanship is a purposeful cover directing our eyes to those who have no power to control agencies now so firmly entrenched within the system that they are completely independent of it.

    Start at the bottom by electing only Senators and Representatives who will pledge to repeal the Patriot Act. Forget all this crap about presidents … The Act was passed in the House by 357 to 66 (of 435) and in the Senate by 98 to 1 and was supported by members of both the Republican and Democratic parties. These are the people who are responsible and these are the people who can restore our liberties.

  14. Blouise has a good idea about voting only for people who will repeal the patriot act. I don’t think that will, by itself do the trick, but it will help.

    This nation is very far gone. It will take the work of millions of courageous Americans who care about the lives of others to turn it around. It will be people saying enough! I won’t allow this to happen.

    This is a scary time. We clearly see the govt. is arrayed against the people. They have weapons and they are willing to use them on us. Our hope lies in something no totalitarian ever has-the will to make a good world. I don’t know how this will end. I only know it’s ending is assured should people stand by and do nothing.

  15. http://www.wired.com/threatlevel/2011/11/gps-tracker-times-two/all/1

    Busted! Two New Fed GPS Trackers Found on SUV

    By Kim Zetter
    November 8, 2011

    As the Supreme Court gets ready to hear oral arguments in a case Tuesday that could determine if authorities can track U.S. citizens with GPS vehicle trackers without a warrant, a young man in California has come forward to Wired to reveal that he found not one but two different devices on his vehicle recently.

    The 25-year-old resident of San Jose, California, says he found the first one about three weeks ago on his Volvo SUV while visiting his mother in Modesto, about 80 miles northeast of San Jose. After contacting Wired and allowing a photographer to snap pictures of the device, it was swapped out and replaced with a second tracking device. A witness also reported seeing a strange man looking beneath the vehicle of the young man’s girlfriend while her car was parked at work, suggesting that a tracking device may have been retrieved from her car.

    Then things got really weird when police showed up during a Wired interview with the man.

    The young man, who asked to be identified only as Greg, is one among an increasing number of U.S. citizens who are finding themselves tracked with the high-tech devices.

    The Justice Department has said that law enforcement agents employ GPS as a crime-fighting tool with “great frequency,” and GPS retailers have told Wired that they’ve sold thousands of the devices to the feds.

    But little is known about how or how often law enforcement agents use them. And without a clear ruling requiring agents to obtain a “probable cause” warrant to use the devices, it leaves citizens who may have only a distant connection to a crime or no connection at all vulnerable to the whimsy of agents who are fishing for a case.

    The invasive technology, for example, allows police, the FBI, the Drug Enforcement Administration and other agencies to engage in covert round-the-clock surveillance over an extended period of time, collecting vast amounts of information about anyone who drives the vehicle that is being tracked.

    “A person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts,” wrote U.S. Appeals Court Judge Douglas Ginsburg in a recent ruling that the Supreme Court will be examining this week to determine if warrants should be required for use with trackers.

    Greg says he discovered the first tracker on his vehicle after noticing what looked like a cell phone antenna inside a hole on his back bumper where a cable is stored for towing a trailer. The device, the size of a mobile phone, was not attached to a battery pack, suggesting the battery was embedded in its casing.

    The first GPS tracker found was slipped into a fabric sleeve, containing magnets, and placed on the underside of the vehicle in the wheel well of the spare tire.
    Photo: Jon Snyder/Wired.com

    A week later when he was back in San Jose, he checked the device, and it appeared to have been repositioned slightly on the vehicle to make it less visible. It was placed on the underside of the car in the wheel well that holds a spare tire.

    Greg, a Hispanic American who lives in San Jose at the home of his girlfriend’s parents, contacted Wired after reading a story published last year about an Arab-American citizen named Yasir Afifi who found a tracking device on his car. Greg wanted to know what he should do with the device.

    Afifi believed he was being tracked by authorities for six months before a mechanic discovered the device on his car when he took it into a garage for an oil change. He apparently came under surveillance after the FBI received a vague tip from someone who said Afifi might be a threat to national security. Afifi has filed a suit against the government, asserting that authorities violated his civil liberties by placing the device on his vehicle without a warrant and without suspicion of a crime. His attorney, Zahra Billoo, told Wired this week that she’s requested a stay in her client’s case, pending a ruling by the Supreme Court in the GPS tracking case now before it.

    Greg’s surveillance appears to involve different circumstances. It most likely involves a criminal drug investigation centered around his cousin, a Mexican citizen who fled across the border to that country a year ago and may have been involved in the drug trade as a dealer.

    “He took off. I think he was fleeing. I think he committed a crime,” Greg told Wired.com, asserting that he himself is not involved in drugs.

    Greg says he bought the SUV from his cousin in June, paying cash for it to a family member. He examined the car at the time and found no tracking device on it. A month later, he drove his cousin’s wife to Tijuana. Greg says he remained in Mexico a couple of days before returning to the U.S.

    The first GPS tracker, out of its sleeve. Photo courtesy of Greg.

    It’s possible the surveillance began shortly after his return, but Greg discovered the device only about three weeks ago during his visit to Modesto. The device was slipped into a sleeve that contained small magnets to affix it to the car.

    On Tuesday, Nov. 1, Wired photographer Jon Snyder went to San Jose to photograph the device. The next day, two males and one female appeared suddenly at the business where Greg’s girlfriend works, driving a Crown Victoria with tinted windows. A witness reported to Greg that one of the men jumped out of the car, bent under the front of the girlfriend’s car for a few seconds, then jumped back into the Crown Victoria and drove off. Wired was unable to confirm the story.

    The following day, Greg noticed that the GPS tracker on his own car had been replaced with a different tracker, this one encased in a clam shell cover attached to a large round magnet to hold the device to the car. The device was attached to a 3.6 VDC Lithium Polymer rechargeable battery.

    There was no writing on the tracker to identify its maker, but a label on the battery indicated that it’s sold by a small firm in Farmingdale, New York, called Revanche. A notice on a government web site last June indicates that it was seeking 500 of the batteries and 250 battery chargers for the Drug Enforcement Administration. A separate notice on the same site in 2008 refers to a contract for what appears to be a similar Revanche battery. The notice indicates the batteries work with GPS devices made by Nextel and Sendum.

    A spokeswoman with the DEA’s office in San Francisco, however, declined to say if the device on Greg’s vehicle was theirs.

    “We cannot comment on our means or methods that we use, so I cannot provide you with any additional information,” said DEA spokeswoman Casey McEnry.

    Second GPS tracker with clam shell casing and Lithium Polymer battery.
    Photo: Jon Snyder/Wired.com

    The second device on Greg’s vehicle appears to be a Sendum PT200 GPS tracker with the factory battery swapped out and replaced with the Revanche battery. The Sendum GPS tracker is marketed to private investigators, law enforcement and transportation security managers and sells for about $430 without the battery. With the factory battery “it will last 7-15 days reporting every hour in a good cellular coverage zone,” according to marketing literature describing it, and it uses CDMA cellular communications and gpsOne location services to determine its location.

    When this reporter drove down to meet Greg and photograph the second tracker with photographer Snyder, three police cars appeared at the location that had been pre-arranged with Greg, at various points driving directly behind me without making any verbal contact before leaving.

    After moving the photo shoot to a Rotten Robbie gas station a mile away from the first location, another police car showed up. In this case, the officer entered the station smiling at me and turned his car around to face the direction of Greg’s car, a couple hundred yards away. He remained there while the device was photographed. A passenger in the police car, dressed in civilian clothes, stepped out of the vehicle to fill a gas container, then the two left shortly before the photo shoot was completed.

    The Obama administration will be defending the warrantless use of such trackers in front of the Supreme Court on Tuesday morning. The administration, which is attempting to overturn a lower court ruling that threw out a drug dealer’s conviction over the warrantless use of a tracker, argues that citizens have no expectation of privacy when it comes to their movements in public so officers don’t need to get a warrant to use such devices.

    It’s unclear if authorities obtained a warrant to track Greg’s vehicle. While Greg says he’s committed no crimes and has nothing to hide, the not-so-stealthy police maneuver at his girlfriend’s place of employment makes it look to others like she’s involved in something nefarious, he says. That concerns him.

    It concerns attorney Billoo as well.

    “For a lot of us, it’s like, Well I’m not selling cocaine, so let them put a tracking device on the car of [a suspect] who is selling cocaine,” Billoo says. “And I’m not a terrorist, so let them put the device on someone [suspected of being] a terrorist. But it shouldn’t be unchecked authority on the part of police officers. If law enforcement doesn’t care to have their authority checked, then we’re in a lot of trouble.” (end of article)

  16. …so frightened that they willingly turned over their liberty to the goons in the shadows.
    Blouise, with great respect, I disagree. I don’t disagree with your scenario, but I do not think that the American people have been as willing or as frightened as you suggest. Those politicians and those in the courts who had been so high on the hog that they were caught in new territory….so out of touch with Joe Public, if you will, they were our wall against this kind of terrorism. The wall is not completely dsmantled and we are getting a darn good look behind the curtain….but it is a mixed bag. .Corporate interests are just 1 of the ‘giveaway’ issues. There is a mighty move towards Capitalization on a Global scale….but that could not be acheived without the smoke screen of a 1000 attacks on the foundation constitutional issues like separation of church and state. abortion. womens issues. healthcare. alien rights. medicare…blah blah blah. …Opening the floodgates to the greedy guts did nothing more than damage….but the seal of approval was at the Supreme Court level…and higher. None of this could be accomplished without the blindfolding of the public by degree and dismantling of the Constitution by design. Habeus Corpus…Torture…detainment…surveillance…all these actions are anti-thetical to Americans.

    It’s been an inside job all along, it will not change till lobbyists are on civil servant salaries and enforcement of existing laws isn’t gerrymandered like a political district. That’s my rant for the day.

  17. “A ruling is expected before June.”

    Before June????



    Justice Antonin Scalia also expressed concern, calling it “unquestionably a trespass” by the police and saying the device was attached without Jones’ knowledge or approval.

    Justice Ruth Bader Ginsburg said that under the government’s position anyone could be monitored after leaving their home and entering a vehicle. Only a person’s home would be secure from intrusion, she said.

    Justice Elena Kagan said a GPS device can track someone’s movements 24 hours a day, wherever they go, and the data reported to the police. “That seems too much to me,” she said.

    Chief Justice John Roberts said to Dreeben that the normal way to handle questions such as the length of monitoring would be to get a judge’s advance approval in a warrant.

    Justice Sonia Sotomayor asked how far the government could go, questioning whether the police could put a computer chip in a person’s overcoat or could monitor and track everyone through their cell phones. “That’s really the bottom line,” she said.

    Attorney Stephen Leckar, arguing for Jones, said use of the GPS device was a grave threat and an abuse of privacy rights.

    Justice Samuel Alito pressed him on where to draw the line and whether the police could use a GPS device to monitor a suspect just for several hours or for only one day.

    Sotomayor asked whether the police can access satellite cameras that show a neighborhood and use that to monitor a person’s movement from place to place. Leckar said the police would have to get a warrant.

    A ruling is expected before June. (end of excerpt)

  18. “Justice Ruth Bader Ginsburg said that under the government’s position anyone could be monitored after leaving their home and entering a vehicle. Only a person’s home would be secure from intrusion, she said.”

    Well here’s a newflash:

    Not even a person’s home is “secure from intrusion”…, but who would believe it.

    And there’s more… but, again, who would believe it…

    What in the hell is wrong with the people who already know… and do nothing… people in positions of power… They know… and they do nothing.

  19. ” Injustice anywhere is a threat to justice everywhere.” Dr. Martin Luther King, Jr., Letter from the Birmingham Jail.

    ” It is the first responsibility of every citizen to question authority.” Benjamin Franklin

    ” Bad things happen when good people don’t speak out.” Mahatma Gandhi

    It is a sad day in America when we are having a discussion on the eroding rights of U.S. citizens and the power given to law enforcement and sanctioned by the government. This is very troubling to an old criminal defense lawyer observing the constant chipping away at the 4th Amendment.

    ” I love my country…It’s the government I’m afraid of….God Bless America.” Unknown

  20. Woosty,

    The attacks that brought down the towers took place on Sept 11, 2001 and the Patriot Act was passed on Oct. 26, 2001 exactly 45 days later. That is the time frame I’m referring to when I talk of “all the people and all the politicians were running scared”.

    During that 45 days the anthrax letters had gone out to the Post Office and to Capitol Hill. On the day before passage, Oct. 25th, Tom Ridge issued this statement”

    “Clearly, we are up against a shadow enemy, shadow soldiers, people who have no regard for human life. They are determined to murder innocent people.”

    From Oct 20, 2001 NY Times article by Saul Hansell

    “How do you calculate risk in an era when nightmares are becoming headlines?
    That question can be terrifying these days for anyone who flies in an airplane or opens an unfamiliar envelope.”

    On Oct. 20, 2001 some people were being escorted by police to their homes and businesses around Ground Zero and the news of the devastation was being reported on through their eyes for the first time.

    Yes, the people and the politicians were all running scared and the coup took place without a hitch.

  21. You know … there have been some very scholarly and sometimes heated discussions on the blog debating the reasons the Towers fell but it is the Anthrax Attack that took place with all those mysterious letters on Sept 17, 18 – Oct 2, 12,15 (Post Office, Florida Newspaper, Sen. Daschle’s office) that really helped pushed the public over the edge and eased the passage of the Patriot Act.

    People seem to forget about that.

  22. Olmstead v. United States (1928) – Right of privacy:

    Justice Brandeis wrote his widely cited dissenting opinion in Olmstead v. United States (1928), Brandeis relied on thoughts he developed in his Harvard Law Review article in 1890. But in his dissent, he now changed the focus whereby he urged making personal privacy matters more relevant to constitutional law, going so far as saying “the government [was] identified . . . as a potential privacy invader.” At issue in Olmstead was the use of wiretap technology to gather evidence. Referring to this “dirty business,” he then tried to combine the notions of civil privacy and the “right to be left alone” with the right offered by the Fourth Amendment which disallowed unreasonable search and seizure. Brandeis wrote in his lengthy dissent:

    “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.” [38]
    In succeeding years his right of privacy concepts gained powerful disciples who relied on his dissenting opinion: Justice Frank Murphy, in 1942, used his Harvard Law Review article in writing an opinion for the Court; a few years later, Justice Felix Frankfurter referred to the Fourth Amendment as the “protection of the right to be let alone,” as in the 1947 case of Harris v. U.S., where his opinion wove together the speeches of James Otis, James Madison, John Adams, and Brandeis’s Olmstead opinion, proclaiming the right of privacy as “second to none in the Bill of Rights[13]:26

    Again, five years later, Justice William O. Douglas openly declared that he had been wrong about his earlier tolerance of wiretapping and wrote, “I now more fully appreciate the vice of the practices spawned by Olmstead. . . I now feel that I was wrong . . . Mr. Justice Brandeis in his dissent in Olmstead espoused the cause of privacy – the right to be let alone. What he wrote is an historic statement of that point of view. I cannot improve on it.”[39]:445 And in 1963, Justice William J. Brennan, Jr. joined with these earlier opinions taking the position that “the Brandeis point of view” was well within the longstanding tradition of American law.[13]:26

    However, it took the growth of surveillance technology during the 1950s and 1960s and the “full force of the Warren Court’s due process revolution,” writes McIntosh, to finally overturn the Olmstead law: in 1967, Justice Potter Stewart wrote the opinion overturning Olmstead in Katz v. U.S. McIntosh adds, “A quarter-century after his death, another component of Justice Brandeis’s privacy design was enshrined in American law.”[13]

    As Wayne McIntosh notes, “the spirit, if not the person, of Louis Brandeis, has continued to stimulate the constitutional mutation of a ‘right to privacy’.” [13] These influences have manifested themselves in major decisions relating to everything from abortion rights to the “right to die” controversies. Cases dealing with a state ban on the dissemination of birth control information expanded on Brandeis by including an individual’s “body,” not just her “personality,” as part of her right to privacy. In another case, Justice Harlan credited Brandeis when he wrote, “The entire fabric of the Constitution . . . guarantees that the rights to marital privacy and to marry and raise a family are of similar order and magnitude as the fundamental rights specifically protected.”[40] And the landmark case of Roe v. Wade, one of the most controversial and politically significant cases in U.S. Supreme Court history, the Court wrote, “This right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”[41]

  23. “This is very troubling to an old criminal defense lawyer observing the constant chipping away at the 4th Amendment.” -frankmascagniiii


    Your comments are heartening and comforting to an old nurse — an old nurse who hardly recognizes this country anymore.

    Thank you, as I’ve said before, for being one of the good guys.

  24. http://www.aclu.org/blog/technology-and-liberty/justices-press-government-limits-warrantless-location-tracking

    “In our friend-of-the-court brief, the ACLU asserted:

    Unless this Court concludes that GPS tracking is a Fourth Amendment search, any individual’s movements could be subject to remote monitoring, and permanent recording, at the sole and unfettered discretion of any police officer. Without judicial oversight, the police could track unlimited numbers of people for days, weeks, or months at a time. Americans could never be confident that they were free from round-the-clock surveillance of their activities. With a network of satellites constantly feeding data to a remote computer, police could, at any instant, determine an individual’s current or past movements and the times and locations that he or she crossed paths with other GPS-tracked persons.”

  25. Now is there any doubt that Osama bin Laden won a great victory — not by his action but by our reaction? A reaction which he foresaw and fostered.

    The two wars and government sanctioned war crimes, the expansion of the military-politico-industrial complex and transfer of unfettered power and authority from public to private sector, the trampling of civil liberties and creation of a police state mentality, the resultant Great Recession.

    Where was America as of September 10, 2001?
    Where is America now? Where is the goodwill following 9-11?

    Where is Osama now? A jihad warrior killed in battle. A martyr. An
    inspiration to hundreds of thousands if not millions.

    And every day his enemies, by their own hands, fall deeper into his trap, weakening themselves and thus honoring the Great Osama.

    Think we would wise up, don’t you? But many have discovered there is profit to be made in our self-destruction, political and financial. Or, at least, in the destruction of the 99%.

  26. According to warcosts.com (Thanks, shano.)

    The .01%:

    Martin Stevens Lockheed Martin

    Wes Bush Northrup Grumman

    James McNerney Boeing

  27. Jill, When I was at Occupy Philly they didn’t bother with anything high tech like Sky Watch. A policeman stood right in front of us with a movie camera, filming us all. To my surprise when I expressed dismay another protestor responded, “it is so if somebody gets hurt they can see who did it or if something happens who started it so it is really for our protection.”

  28. “To my surprise when I expressed dismay another protestor responded, “it is so if somebody gets hurt they can see who did it or if something happens who started it so it is really for our protection.” ”

    Perhaps putting an end to childish, infantile ideas, such as the police actually protect you, is a good start on the road to abolishing the american police state. Why not foster discussion of how to accomplish that instead of just crossing your fingers and really really hoping that putting “the right people” in charge of a massive domestic oppression aparatus turns out better than the last time?

  29. Ekeyra, problem is maybe children need to learn cops are our friends but even adults have to have some system of protection in place against those who will feed off the rest of us (as rapists murderers, etc.) Sadly Milgram showed in his experiment that power very quickly goes to our heads. Maybe it is just a part of our DNA that power does indeed corrupt.

  30. Here is the often referred to law article written in 1890 by Supreme Court Justice Brandeis (it’s long but well worth the reading as to his views in 1890): THE RIGHT TO PRIVACY by SAMUEL WARREN & LOUIS D. BRANDEIS Originally published in 4 Harvard Law Review 193 (1890) “It could be done only on principles of private justice, moral fitness, and public convenience, which, when applied to a new subject, make common law without a precedent; much more when received and approved by usage.” Willes, J., in Millar v. Taylor, 4 Burr, 2303, 2312 That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society. Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis. Then the “right to life” served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came a recognition of man’s spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life–the right to be let alone, the right to liberty secures the exercise of extensive civil privileges; and the term “property” has grown to comprise every form of possession– intangible, as well as tangible. Thus, with the recognition of the legal value of sensations, the protection against actual bodily injury was extended to prohibit mere attempts to do such injury; that is, the putting another in fear of such injury. From the action of battery grew that of assault.1 Much later there came a qualified protection of the individual against offensive noises and odors, against dust and smoke, and excessive vibration. The law of nuisance was developed.2 So regard for human emotions soon extended the scope of personal immunity beyond the body of the individual. His reputation, the standing among his fellow men, was considered and the law of slander and libel arose.3 Man’s family relations became a part of the legal conception of his life, and the alienation of a wife’s affections was held remediable.4 Occasionally the law halted–as in its refusal to recognize the intrusion by seduction upon the honor of the family. But even here the demands of society were met. A mean fiction, the action per quod servitium amisit, was resorted to, and by allowing damages for injury to the parents’ feelings, an adequate remedy was ordinarily afforded.5 Similar to the expansion of the right to life was the growth of the legal conception of property. From corporeal property arose the incorporeal rights issuing out of it; and then there opened the wide realm of intangible property, in the products and processes of the mind,6 as works of literature and art,7 good-will,8 trade secrets, and trade-marks.9 This development of the law was inevitable. The intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilization, made it clear to man that only a part of the pain, pleasure, and profit of life lay in physical things. Thoughts, emotions, and sensations demanded legal recognition, and the beautiful capacity for growth which characterizes the common law enabled the judges to afford the requisite protection, without the interposition of the legislature. Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right “to be let alone.”10 Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed from the house-tops.” For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons;11 and the evil of the invasion of privacy by the newspapers, long keenly felt, has been but recently discussed by an able writer.12 The alleged facts of a somewhat notorious case brought before an inferior tribunal in New York a few months ago,13 directly involved the consideration of the right of circulating portraits; and the question whether our law will recognize and protect the right to privacy in this and in other respects must soon come before our courts for consideration. Of the desirability–indeed of the necessity–of some such protection, there can, it is believed, be no doubt. The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. Nor is the harm wrought by such invasions confined to the suffering of those who may be made the subjects of journalistic or other enterprise. In this, as in other branches of commerce, the supply creates the demand. Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in a lowering of social standards and of morality. Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance. Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors, no one can be surprised that it usurps the place of interest in brains capable of other things. Triviality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under its blighting influence. It is our purpose to consider whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual; and, if it does, what the nature and extent of such protection is. Owing to the nature of the instruments by which privacy is invaded, the injury inflicted bears a superficial resemblance to the wrongs dealt with by the law of slander and of libel, while a legal remedy for such injury seems to involve the treatment of mere wounded feelings, as a substantive cause of action. The principle on which the law of defamation rests, covers, however, a radically different class of effects from those for which attention is now asked. It deals only with damage to reputation, with the injury done to the individual in his external relations to the community, by lowering him in the estimation of his fellows. The matter published of him, however widely circulated, and however unsuited to publicity, must, in order to be actionable, have a direct tendency to injure him in his intercourse with others, and even if in writing or in print, must subject him to the hatred, ridicule, or contempt of his fellow men–the effect of the publication upon his estimate of himself and upon his own feelings not forming an essential element in the cause of action. In short, the wrongs and correlative rights recognized by the law of slander and libel are in their nature material rather than spiritual. That branch of the law simply extends the protection surrounding physical property to certain of the conditions necessary or helpful to worldly prosperity. On the other hand, our law recognizes no principle upon which compensation can be granted for mere injury to the feelings. However painful the mental effects upon another of an act, though purely wanton or even malicious, yet if the act itself is otherwise lawful, the suffering inflicted is damnum absque injuria. Injury of feelings may indeed be taken account of,14 in ascertaining the amount of damages when attending what is recognized as a legal injury; but our system, unlike the Roman law, does not afford a remedy even for mental suffering which results from mere contumely and insult, from an intentional and unwarranted violation of the “honor” of another.15 It is not, however, necessary, in order to sustain the view that the common law recognizes and upholds a principle applicable to cases of invasion of privacy, to invoke the analogy, which is but superficial, to injuries sustained, either by an attack upon reputation or by what the civilians called a violation of honor; for the legal doctrines relating to infractions of what is ordinarily termed the common-law right to intellectual and artistic property are, it is believed, but instances and applications of a general right to privacy, which properly understood afford a remedy for the evils under consideration. The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others.16 Under our system of government, he can never be compelled to express them (except when upon the witness stand); and even if he has chosen to give them expression, he generally retains the power to fix the limits of the publicity which shall be given them. The existence of this right does not depend upon the particular method of expression adopted. It is immaterial whether it be by word 17 or by signs,l8 in painting,19 by sculpture, or in music.20 Neither does the existence of the right depend upon the nature or value of the thought or emotion, nor upon the excellence of the means of expression.21 The same protection is accorded to a casual letter or an entry in a diary and to the most valuable poem or essay, to a botch or daub and to a masterpiece. In every such case the individual is entitled to decide whether that which is his shall be given to the public.22 No other has the right to publish his productions in any form, without his consent. This right is wholly independent of the material on which, or the means by which, the thought, sentiment, or emotion is expressed. It may exist independently of any corporeal being, as in words spoken, a song sung, a drama acted. Or if expressed on any material, as a poem in writing, the author may have parted with the paper, without forfeiting any proprietary right in the composition itself. The right is lost only when the author himself communicates his production to the public–in other words, publishes it.23 It is entirely independent of the copyright laws, and their extension into the domain of art. The aim of those statutes is to secure to the author, composer, or artist the entire profits arising from publication; but the common-law protection enables him to control absolutely the act of publication, and in the exercise of his own discretion, to decide whether there shall be any publication at all.24 The statutory right is of no value, unless there is a publication; the common-law right is lost as soon as there is a publication. What is the nature, the basis, of this right to prevent the publication of manuscripts or works of art? It is stated to be the enforcement of a right of property; 25 and no difficulty arises in accepting this view, so long as we have only to deal with the reproduction of literary and artistic compositions. They certainly possess many of the attributes of ordinary property: they are transferable; they have a value; and publication or reproduction is a use by which that value is realized. But where the value of the production is found not in the right to take the profits arising from publication, but in the peace of mind or the relief afforded by the ability to prevent any publication at all, it is difficult to regard the right as one of property, in the common acceptation of that term. A man records in a letter to his son, or in his diary, that he did not dine with his wife on a certain day. No one into whose hands those papers fall could publish them to the world, even if possession of the documents had been obtained rightfully and the prohibition would not be confined to the publication of a copy of the letter itself, or of the diary entry; the restraint extends also to a publication of the contents. What is the thing which is protected? Surely, not the intellectual act of recording the fact that the husband did not dine with his wife, but that fact itself. It is not the intellectual product, but the domestic occurrence. A man writes a dozen letters to different people. No person would be permitted to publish a list of the letters written. If the letters or the contents of the diary were protected as literary compositions, the scope of the protection afforded should be the same secured to a published writing under the copyright law. But the copyright law would not prevent an enumeration of the letters, or the publication of some of the facts contained therein. The copyright of a series of paintings or etchings would prevent a reproduction of the paintings as pictures; but it would not prevent a publication of a list or even a description of them.26 Yet in the famous case of Prince Albert v. Strange the court held that the common-law rule prohibited not merely the reproduction of the etchings which the plaintiff and Queen Victoria had made for their own pleasure, but also “‘the publishing (at least by printing or writing) though not by copy or resemblance, a description of them, whether more or less limited or summary, whether in the form of a catalogue or otherwise.”27 Likewise, an unpublished collection of news possessing no element of a literary nature is protected from piracy.28 That this protection cannot rest upon the right to literary or artistic property in any exact sense, appears the more clearly when the subject-matter for which protection is invoked is not even in the form of intellectual property, but has the attributes of ordinary tangible property. Suppose a man has a collection of gems or curiosities which he keeps private: it would hardly be contended that any person could publish a catalogue of them, and yet the articles enumerated are certainly not intellectual property in the legal sense, any more than a collection of stoves or of chairs. 29 The belief that the idea of property in its narrow sense was the basis of the protection of unpublished manuscripts led an able court to refuse, in several cases, injunctions against the publication of private letters, on the ground that “letters not possessing the attributes of literary compositions are not property entitled to protection”; and that it was “evident the plaintiff could not have considered the letters as of any value whatever as literary productions, for a letter cannot be considered of value to the author which he never would consent to have published.”30 But these decisions have not been followed,31 and it may now be considered settled that the protection afforded by the common law to the author of any writing is entirely independent of its pecuniary value, its intrinsic merits, or of any intention to publish the same, and, of course, also, wholly independent of the material, if any, upon which, or the mode in which, the thought or sentiment was expressed. Although the courts have asserted that they rested their decisions on the narrow grounds of protection to property, yet there are recognitions of a more liberal doctrine. Thus in the case of Prince Albert v. Strange, already referred to, the opinions both of the Vice-Chancellor and of the Lord Chancellor, on appeal, show a more or less clearly defined perception of a principle broader than those which were mainly discussed, and on which they both placed their chief reliance. Vice-Chancellor Knight Bruce referred to publishing of a man that he had “written to particular persons or on particular subjects” as an instance of possibly injurious disclosures as to private matters, that the courts would in a proper case prevent; yet it is difficult to perceive how, in such a case, any right of property, in the narrow sense, would be drawn in questions, or why, if such a publication would be restrained when it threatened to expose the victim not merely to sarcasm, but to ruin, it should not equally be enjoined, if it threatened to embitter his life. To deprive a man of the potential profits to be realized by publishing a catalogue of his gems cannot per se be a wrong to him. The possibility of future profits is not a right of property which the law ordinarily recognizes; it must, therefore, be an infraction of other rights which constitutes the wrongful act, and that infraction is equally wrongful, whether its results are to forestall the profits that the individual himself might secure by giving the matter a publicity obnoxious to him, or to gain an advantage at the expense of his mental pain and suffering. If the fiction of property in a narrow sense must be preserved, it is still true that the end accomplished by the gossip-monger is attained by the use of that which is another’s, the facts relating to his private life, which he has seen fit to keep private. Lord Cottenham stated that a man “is entitled to be protected in the exclusive use and enjoyment of that which is exclusively his,” and cited with approval the opinion of Lord Eldon, as reported in a manuscript note of the case of Wyatt v. Wilson, in 1820, respecting an engraving of George the Third during his illness, to the effect that “if one of the late king’s physicians had kept a diary of what he hear and saw, the court would not, in the king’s lifetime, have permitted him to print and publish it”; and Lord Cottenham declared, in respect to the acts of the defendants in the case before him, that “privacy is the right invaded.” But if privacy is once recognized as a right entitled to legal protection, the interposition of the courts cannot depend on the particular nature of the injuries resulting. These considerations lead to the conclusion that the protection afforded to thoughts, sentiments, and emotions, expressed through the medium of writing or of the arts, so far as it consists in preventing publication, is merely an instance of the enforcement of the more general right of the individual to be let alone. It is like the right not to be assaulted or beaten, the right not to be imprisoned, the right not to be maliciously prosecuted, the right not to be defamed. In each of these rights, as indeed in all other rights recognized by the law, there inheres the quality of being owned or possessed–and (as that is the distinguishing attribute of property) there may be some propriety in speaking of those rights as property. But, obviously, they bear little resemblance to what is ordinarily comprehended under that term. The principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality.32 If we are correct in this conclusion, the existing law affords a principle which may be invoked to protect the privacy of the individual from invasion either by the too enterprising press, the photographer, or the possessor of any other modern device for recording or reproducing scenes or sounds. For the protection afforded is not confined by the authorities to those cases where any particular medium or form of expression has been adopted, nor to products of the intellect. The same protection is afforded to emotions and sensations expressed in a musical composition or other work of art as to a literary composition; and words spoken, a pantomime acted, a sonata performed, is no less entitled to protection than if each had been reduced to writing. The circumstance that a thought or emotion has been recorded in a permanent form renders its identification easier, and hence may be important from the point of view of evidence, but it has no significance as a matter of substantive right. If, then, the decisions indicate a general right to privacy for thoughts, emotions, and sensations, these should receive the same protection, whether expressed in writing, or in conduct, in conversation, in attitudes, or in facial expression. It may be urged that a distinction should be taken between the deliberate expression of thoughts and emotions in literary or artistic compositions and the casual and often involuntary expression given to them in the ordinary conduct of life. In other words, it may be contended that the protection afforded is granted to the conscious products of labor, perhaps as an encouragement effort.33 This contention, however plausible, has, in fact, little to recommend it. If the amount of labor involved be adopted as the test, we might well find that the effort to conduct one’s self properly in business and in domestic relations had been far greater than that involved in painting a picture or writing a book; one would find that it was far easier to express lofty sentiments in a diary than in the conduct of a noble life. If the test of deliberateness of the act be adopted, much casual correspondence which is now accorded full protection would be excluded from the beneficent operation of existing rules. After the decisions denying the distinction attempted to be made between those literary productions which it was intended to publish and those which it was not, all considerations of the amount of labor involved, the degree of deliberation, the value of the product, and the intention of publishing must be abandoned, and no basis is discerned upon which the right to restrain publication and reproduction of such so-called literary and artistic works can be rested, except the right to privacy, as a part of the more general right to the immunity of the person–the right to one’s personality. It should be stated that, in some instances where protection has been afforded against wrongful publication, the jurisdiction has been asserted, not on the ground of property, or at least not wholly on that ground, but upon the ground of an alleged breach of an implied contract or of a trust or confidence. Thus, in Abernethy v. Hutchinson, 3 L. J. Ch. 209 (1825), where the plaintiff, a distinguished surgeon, sought to restrain the publication in the Lancet of unpublished lectures which he had delivered at St. Bartholomew’s Hospital in London, Lord Eldon doubted whether there could be property in lectures which had not been reduced to writing, but granted the injunction on the ground of breach of confidence, holding “that when persons were admitted as pupils or otherwise, to hear these lectures, although they were orally delivered, and although the parties might go to the extent, if they were able to do so, of putting down the whole by means of shorthand, yet they could do that only for the purposes of their own information, and could not publish, for profit, that which they had not obtained the right of selling.” In Prince Albert v. Strange, 1 McN. & G. 25 (1849), Lord Cottenham, on appeal, while recognizing a right of property in the etchings which of itself would justify the issuance of the injunction, stated, after discussing the evidence, that he was bound to assume that the possession of the etchings by the defendant had “its foundation in a breach of trust, confidence, or contract,” and that upon such ground also the plaintiff’s title to the injunction was fully sustained. In Tuck v. Priester, 19 Q. B. D. 639 (1887), the plaintiffs were owners of a picture, and employed the defendant to make a certain number of copies. He did so, and made also a number of other copies for himself, and offered them for sale in England at a lower price. Subsequently, the plaintiffs registered their copyright in the picture, and then brought suit for an injunction and damages. The Lords Justices differed as to the application of the copyright acts to the case, but held unanimously that independently of those acts, the plaintiffs were entitled to an injunction and damages for breach of contract. In Pollard v. Photographic Co., 40 Ch. Div. 345 (1888), a photographer who had taken a lady’s photograph under the ordinary circumstances was restrained from exhibiting it, and also from selling copies of it, on the ground that it was a breach of an implied term in the contract, and also that it was a breach of confidence.. Mr. Justice North interjected in the argument of the plaintiff’s counsel the inquiry: “Do you dispute that if the negative likeness were taken on the sly, the person who took it might exhibit copies?” and counsel for the plaintiff answered: “In that case there would be no trust or consideration to support a contract.” Later, the defendant’s counsel argued that “a person has no property in his own features; short of doing what is libellous or otherwise illegal, there is no restriction on the photographer’s using his negative.” But the court, while expressly finding a breach of contract and of trust sufficient to justify its interposition, still seems to have felt the necessity of resting the decision also upon a right of property,34 in order to bring it within the line of those cases which were relied upon as precedents.35 This process of implying a term in a contract, or of implying a trust (particularly where the contract is written, and where there is no established usage or custom), is nothing more nor less than a judicial declaration that public morality, private justice, and general convenience demand the recognition of such a rule, and that the publication under similar circumstances would be considered an intolerable abuse. So long as these circumstances happen to present a contract upon which such a term can be engrafted by the judicial mind, or to supply relations upon which a trust or confidence can be erected, there may be no objection to working out the desired protection through the doctrines of contract or of trust. But the court can hardly stop there. The narrower doctrine may have satisfied the demands of society at a time when the abuse to be guarded against could rarely have arisen without violating a contract or a special confidence; but now that modern devices afford abundant opportunities for the perpetration of such wrongs without any participation by the injured party, the protection granted by the law must be placed upon a broader foundation. While, for instance, the state of the photographic art was such that one’s picture could seldom taken without his consciously “sitting” for the purpose, the law of contract or of trust might afford the prudent man sufficient safeguards against the improper circulation of his portrait; but since the latest advances in photographic art have rendered it possible to take pictures surreptitiously, the doctrines of contract and of trust are inadequate to support the required protection, and the law of tort must be resorted to. The right of property in its widest sense, including all possession, including all rights and privileges, and hence embracing the right to an inviolate personality, affords alone that broad basis upon which the protection which the individual demands can be rested. Thus, the courts, in searching for some principle upon which the publication of private letters could be enjoined, naturally came upon the ideas of a breach of confidence, and of an implied contract; but it required little consideration to discern that this doctrine could not afford all the protection required, since it would not support the court in granting a remedy against a stranger; and so the theory of property in the contents of letters was adopted.36 Indeed, it is difficult to conceive on what theory of the law the casual recipient of a letter, who proceeds to publish it, is guilty of a breach of contract, express or implied, or of any breach of trust, in the ordinary acceptation of that term. Suppose a letter has been addressed to him without his solicitation. He opens it, and reads. Surely, he has not made any contract; he has not accepted any trust. He cannot, by opening and reading the letter, have come under any obligation save what the law declares; and, however expressed, that obligation is simply to observe the legal right of the sender, whatever it may be, and whether it be called his right of property in the contents of the letter, or his right to privacy.37 A similar groping for the principle upon which a wrongful publication can be enjoined is found in the law of trade secrets. There, injunctions have generally been granted on the theory of a breach of contract, or of an abuse of confidence.38 It would, of course, rarely happen that anyone would be in the possession of a secret unless confidence had been reposed in him. But can it be supposed that the court would hesitate to grant relief against one who had obtained his knowledge lay an ordinary trespass–for instance, by wrongfully looking into a book in which the secret was recorded, or by eavesdropping? Indeed, in Yovatt v. Winyard, 1 J. & W. 394 (1820), where an injunction was granted against making any use of or communicating certain recipes for veterinary medicine, it appeared that the defendant, while in the plaintiff’s employ, had surreptitiously got access to his book of recipes, and copied them. Lord Eldon “granted the injunction, upon the ground of there having been a breach of trust and confidence”; but it would seem to be difficult to draw any sound legal distinction between such a case and one where a mere stranger wrongfully obtained access to the book.39 We must therefore conclude that the rights, so protected, whatever their exact nature, are not rights arising from contract or from special trust, but are rights as against the world; and, as above stated, the principle which has been applied to protect these rights is in reality not the principle of private property, unless that word be used in an extended and unusual sense. The principle which protects personal writings and any other productions of the intellect or of the emotions, is the right to privacy, and the law has no new principle to formulate when it extends this protection to the personal appearance, sayings, acts, and to personal relations, domestic or otherwise.40 If the invasion of privacy constitutes a legal injuria, the elements for demanding redress exist, since already the value of mental suffering, caused by an act wrongful in itself, is recognized as a basis for compensation. The right of one who has remained a private individual, to prevent his public portraiture, presents the simplest case for such extension; the right to protect one’s self from pen portraiture, from a discussion by the press of one’s private affairs, would be a more important and far-reaching one. If casual and unimportant statements in a letter, if handiwork, however inartistic and valueless, if possessions of all sorts are protected not only against reproduction, but against description and enumeration, how much more should the acts and sayings of a man in his social and domestic relations be guarded from ruthless publicity. If you may not reproduce a woman’s face photographically without her consent, how much less should be tolerated the reproduction of her face, her form, and her actions, by graphic descriptions colored to suit a gross and depraved imagination. The right to privacy, limited as such right must necessarily be, has already found expression in the law of France.41 It remains to consider what are the limitations of this right to privacy, and what remedies may be granted for the enforcement of the right. To determine in advance of experience the exact line at which the dignity and convenience of the individual must yield to the demands of the public welfare or of private justice would be a difficult task; but the more general rules are furnished by the legal analogies already developed in the law of slander and libel, and in the law of literary and artistic property. First. The right to privacy does not prohibit any publication of matter which is of public or general interest. In determining the scope of this rule, aid would be afforded by the analogy, in the law of libel and slander, of cases which deal with the qualified privilege of comment and criticism on matters of public and general interest.42 There are of course difficulties in applying such a rule; but they are inherent in the subject-matter, and are certainly no greater than those which exist in many other branches of the law– for instance, in that large class of cases in which the reasonableness or unreasonableness of an act is made the test of liability. The design of the law must be to protect those persons with whose affairs the community has no legitimate concern, from being dragged into an undesirable and undesired publicity and to protect all persons, whatsoever their position or station, from having matters which they may properly prefer to keep private, made public against their will. It is the unwarranted invasion of individual privacy which is reprehended, and to be, so far as possible, prevented. The distinction, however, noted in the above statement is obvious and fundamental. There are persons who may reasonably claim as a right, protection from the notoriety entailed by being made the victims of journalistic enterprise. There are others who, in varying degrees, have renounced the right to live their lives screened from public observation. Matters which men of the first class may justly contend concern themselves alone, may in those of the second be the subject of legitimate interest to their fellow citizens. Peculiarities of manner and person, which in the ordinary individual should be free from comment, may acquire a public importance, if found in a candidate for political office. Some further discrimination is necessary, therefore, than to class facts or deeds as public or private according to a standard to be applied to the fact or deed per se. To publish of a modest and retiring individual that he suffers from an impediment in his speech or that he cannot spell correctly, is an unwarranted, if not an unexampled, infringement of his rights, while to state and comment on the same characteristics found in a would-be congressman could not be regarded as beyond the pale of propriety. The general object in view is to protect the privacy of private life, and to whatever degree and in whatever connection a man’s life has ceased to be private, before the publication under consideration has been made, to that extent the protection is to be withdrawn.43 Since, then, the propriety of publishing the very same facts may depend wholly upon the person concerning whom they are published, no fixed formula can be used to prohibit obnoxious publications. Any rule of liability adopted must have in it an elasticity which shall take account of the varying circumstances of each case–a necessity which unfortunately renders such a doctrine not only more difficult of application, but also to a certain extent uncertain in its operation and easily rendered abortive. Besides, it is only the more flagrant breaches of decency and propriety that could in practice be reached, and it is not perhaps desirable even to attempt to repress everything which the nicest taste and keenest sense of the respect due to private life would condemn. In general, then, the matters of which the publication should be repressed may be described as those which concern the private life, habits, acts, and relations of an individual, and have no legitimate connection with his fitness for a public office which he seeks or for which he is suggested, or for any public quasi-public position which he seeks or for which he is suggested, and have no legitimate relation to or bearing upon any act done by him in a public or quasi-public capacity. The foregoing is not designed as a wholly accurate or exhaustive definition, since that which must ultimately in a vast number of cases become a question of individual judgment and opinion is incapable of such definition; but it is an attempt to indicate broadly the class of matters referred to. Some things all men alike are entitled to keep from popular curiosity, whether in public life or not, while others are only private because the persons concerned have not assumed a position which makes their doings legitimate matters of public investigation.44 Second. The right to privacy does not prohibit the communication of any matter, though in its nature private, when the publication is made under circumstances which would render it a privileged communication according to the law of slander and libel. Under this rule, the right to privacy is not invaded by any publication made in a court of justice, in legislative bodies, or the committees of those bodies; in municipal assemblies, or the committee of such assemblies, or practically by any communication made in airy other public body, municipal or parochial, or in any body quasi-public, like the large voluntary associations formed for almost every purpose of benevolence, business, or other general interest; and (at least in many jurisdictions) reports of any such proceedings would in some measure be accorded a like privilege.45 Nor would the rule prohibit any publication made by one in the discharge of some public or private duty, whether legal or moral, or in conduct of one’s own affairs, in matters where his own interest is concerned.46 Third. The law would probably not grant any redress for the invasion of privacy by oral publication in the absence of special damage. The same reasons exist for distinguishing between oral and written publications of private matters, as is afforded in the law of defamation by the restricted liability for slander as compared with the liability for libel.47 The injury resulting from such oral communications would ordinarily be so trifling that the law might well, in the interest of free speech, disregard it altogether.48 Fourth. The right to privacy ceases upon the publication of the facts by the individual, or with his consent. This is but another application of the rule which has become familiar in the law of literary and artistic property. The cases there decided established also what should be deemed a publication–the important principle in this connection being that a private communication or circulation for a restricted purpose is not a publication within the meaning of the law.49 Fifth. The truth of the matter published does not afford a defense. Obviously this branch of the law should have no concern with the truth or falsehood of the matters published. It is not for injury to the individual’s character that redress or prevention is sought, but for injury to the right of privacy. For the former, the law of slander and libel provides perhaps a sufficient safeguard. The latter implies the right not merely to prevent inaccurate portrayal of private life, but to prevent its being depicted at all.50 Sixth. The absence of “malice” in the publisher does not afford a defense. Personal ill-will is not an ingredient of the offense, any more than in an ordinary case of trespass to person or to property. Such malice is never necessary to be shown in an actions for libel or slander at common law, except in rebuttal of some defense, e.g., that the occasion rendered the communication privileged, or, under the statutes in this state and elsewhere, that the statement complained of was true. The invasion of the privacy that is to be protected is casually complete and equally injurious, whether the motives by which the speaker or writer was actuated are, taken by themselves, culpable or not; just as the damage to character, and to some extent the tendency to provoke a breach of the peace, is equally the result of defamation without regard to the motives leading to its publication. Viewed as a wrong to the individual, this rule is the same pervading the whole law of torts, by which one is held responsible for his intentional acts, even though they are committed with no sinister intent; and viewed as a wrong to society, it is the same principle adopted in a large category of statutory offenses. The remedies for an invasion of the right of privacy are also suggested by those administered in the law of defamation, and in the law of literary and artistic property, namely: 1. An action of tort for damages in all cases.51 Even in the absence of special damages, substantial compensation could be allowed for injury to feelings as in the action of slander and libel. 2. An injunction, in perhaps a very limited class of cases.52 It would doubtless be desirable that the privacy of the individual should receive the added protection of the criminal law, but for this, legislation would be required.53 Perhaps it would be deemed proper to bring the criminal liability for such publication within narrower limits; but that the community has an interest in preventing such invasions of privacy, sufficiently strong to justify the introduction of such a remedy, cannot be doubted. Still, the protection of society must come mainly through a recognition of the rights of the individual. Each man is responsible for his own acts and omissions only. If he condones what he reprobates, with a weapon at hand equal to his defense, he is responsible for the results. If he resists, public opinion will rally to his support. Has he then such a weapon? It is believed that the common law provides him with one, forged in the slow fire of the centuries, and today fitly tempered to his hand. The common law has always recognized a man’s house as his castle, impregnable, often even to its own officers engaged in the execution of its commands. Shall the courts thus close the front entrance to constituted authority, and open wide the back door to idle or prurient curiosity? FOOTNOTES: 1. Year Book, Lib. Ass., folio 99, pl. 60 (1348 or 1349), appears to be the first reported case where damages were recovered for a civil assault. 2. These nuisances are technically injuries to property; but the recognition of the right to have property free from interference by such nuisances involves also a recognition of the value of human sensations. 3. Year Book, Lib. Ass., folio 177, pl. 19 (1356), (2 Finl. Reeves Eng. Law, 395) seems to be the earliest reported case of an action for slander. 4. Winsmore v. Greenbank, Willes, 577 (1745). 5. Loss of service is the gist of the action; but it has been said that “we are not aware of any reported case brought by a parent where the value of such services was held to be the measure of damages.” Cassoday, J., in Lavery v. Crooke, 52 Wis. 612, 623 (1881). First the fiction of constructive service was invented; Martin v. Payne, 9 John. 387 (1912). Then the feelings of the parent, the dishonor to himself and his family, were accepted as the most important element of damage. Bedford v. McKowl, 3 Esp. 119 (1800); Andrews v. Askey, 8 C. & P. 7 (1837); Phillips v. Hoyle, 4 Gray 568 (1855); Phelin v. Kenderdine, 20 Pa. St. 354 (1853). The allowance of these damages would seem to be a recognition that the invasion upon the honor of the family is an injury to the parent’s person, for ordinarily mere injury to parental feelings is not an element of damage, e.g., the suffering of the parent in case of physical injury to the child. Flemington v. Smithers, 2 C. & P. 292 (1827); Black v. Carrolton R.R. Co., 10 La.Ann. 33 (1855); Covington Street Ry. Co. v. Packer, 9 Bush, 455 (1872). 6. “The notion of Mr. Justice Yates that nothing is property which cannot be earmarked and recovered in detinue or trover may be true in an early stage of society, when property is in its simple form and the remedies for violation of it also simple, but is not true in a more civilized state, when the relation of life and the interests arising therefrom are complicated.” Erle, J., in Jefferys v. Boosey, 4 H.L.C. 815, 869 (1845). 7. Copyright appears to have been first recognized as a species of private property in England in 1558. Drone on Copyright 54, 61. 8. Gibblett v. Read, 9 Mod. 459 (1743), is probably the first recognition of goodwill as property. 9. Hogg v. Kirby, 8 Ves. 215 (1803). As late as 1742, Lord Hardwicke refused to treat a trademark as property for infringement upon which an injunction could be granted. Blanchard v. Hill, 2 Atk. 484. 10. Cooley on Torts, 2d ed., p. 29. 11. 8 Amer. Law Reg. N.S. 1 (1869); 12 Wash. Law Rep. 353 (1884); 24 Sol. J. & Rep. 4 (1879). 12. Scribner’s Magazine, July, 1890. “The Rights of the Citizen: to His Reputation,” by E. L. Godkin, Esq. pp. 65, 67. 13. Marion Manola v. Stevens & Myers, N.Y.Supreme Court, New York Times of June 15, 18, 21, 1890. There, the complainant alleged that, while she was playing in the Broadway Theatre, in a role which required her appearance in tights, she was, by means of a flashlight, photographed surreptitiously and without her consent, from one of the boxes, by defendant Stevens, the manager of the “Castle in the Air” company, and defendant Myers, a photographer, and prayed that the defendants might be restrained from making use of the photograph taken. A preliminary injunction issued ex parte, and a time was set for argument of the motion that the injunction should be made permanent, but no one then appeared in opposition. 14. Though the legal value of “feelings” is now generally recognized, distinctions have been drawn between the several classes of cases in which compensation may or may not be recovered. Thus, the fright occasioned by an assault constitutes a cause of action, but fright occasioned by negligence does not. So fright coupled with bodily injury affords a foundation for enhanced damages; but, ordinarily, fright unattended by bodily injury cannot be relied upon as an element of damages, even where a valid cause of action exists, as in trespass quare clausum fregit. Wyman v. Leavitt, 71 Me. 227; Canning v. Williamstown, 1 Cush. 451. The allowance of damages for injury to the parents’ feelings, in case of seduction, abduction of a child (Stowe v. Heywood, 7 All. 118), or removal of the corpse of child from a burial-ground (Meagher v. Driscoll, 99 Mass. 281), are said to be exceptions to a general rule. On the other hand, injury to feelings is a recognized element of damages in actions of slander and libel, and of malicious prosecution. These distinctions between the cases, where injury to feelings does and where it does not constitute a cause of action or legal element of damages, are not logical, but doubtless serve well as practical rules. It will, it is believed, be found, upon examination of the authorities, that wherever substantial mental suffering would be the natural and probable result of the act, there compensation for injury to feelings has been allowed, and that where no mental suffering would ordinarily result, or if resulting, would naturally be but trifling, and, being unaccompanied by visible signs of injury, would afford a wide scope for imaginative ills, there damages have been disallowed. The decisions on this subject illustrate well the subjection in our law of logic to common-sense. 15. “Injuria, in the narrower sense, is every intentional and illegal violation of honour, i.e., the whole personality of another.” “Now an outrage is committed not only when a man shall be struck with the fist, say, or with a club, or even flogged, but also if abusive language has been used to one.” Salkowski, Roman Law, p. 668 and p. 669, n. 2. 16. “It is certain every man has a right to keep his own sentiments, if he pleases. He has certainly a right to judge whether he will make them public, or commit them only to the sight of his friends.” Yates, J., in Millar v. Taylor, 4 Burr. 2303, 2379 (1769). 17. Nichols v. Pitman, 26 Ch. D. 374 (1884). 18. Lee v. Simpson, 3 C.B. 871, 881; Daly v. Palmer, 6 Blatchf. 256. 19. Turner v. Robinson, 10 Ir. Ch. 121; S. C. ib. 510. 20. Drone on Copyright, 102. 21. “Assuming the law to be so, what is its foundation in this respect? It is not, I conceive, referable to any consideration peculiarly literary. Those with whom our common law originated had not probably among their many merits that of being patrons of letters; but they knew the duty and necessity of protecting property, and with that general object laid down rules providently expansive — rules capable of adapting themselves to the various forms and modes of property which peace and cultivation might discover and introduce. “The produce of mental labor, thoughts and sentiments, recorded and preserved by writing, became, as knowledge went onward and spread, and the culture of man’s understanding advanced, a kind of property impossible to disregard, and the interference of modern legislation upon the subject, by the stat. 8 Anne, professing by its title to be ‘For the encouragement of learning,’ and using the words ‘taken the liberty,’ in the preamble, whether it operated in augmentation or diminution of the private rights of authors, having left them to some extent untouched, it was found that the common law, in providing for the protection of property, provided for their security, at least before general publication by the writer’s consent.” Knight Bruce, V.C., in Prince Albert v. Strange, 2 DeGex & Sm. 652, 695 (1849). 22. “The question, however, does not turn upon the form or amount of mischief or advantage, loss or gain. The author of manuscripts, whether he is famous or obscure, low or high, has a right to say of them, if innocent, that whether interesting or dull, light or heavy, salable or unsalable, they shall not, without his consent, be published.” Knight Bruce, V.C., in Prince Albert v. Strange, 2 DeGex & Sm. 652, 694. 23. Duke of Queensbury v. Shebbeare, 2 Eden 329 (1758); Bartlett v. Crittenden, 5 McLean 32, 41 (1849). 24. Drone on Copyright, pp. 102, 104; Parton v. Prang, 3 Clifford 537, 548 (1872); Jefferys v. Boosey, 4 H.L.C.815, 867, 962 (1854). 25. “The question will be whether the bill has stated facts of which the court can take notice, as a case of civil property, which it is bound to protect. The injunction cannot be maintained on any principle of this sort, that if a letter has been written in the way of friendship, either the continuance or the discontinuance of the friendship affords a reason for the interference of the court.” Lord Eldon in Gee v. Pritchard, 2 Swanst. 402, 413 (1818). “Upon the principle, therefore, of protecting property, it is that the common law, in cases not aided or prejudiced by statute, shelters the privacy and seclusion of thought and sentiments committed to writing, and desired by the author to remain not generally known.” Knight Bruce, V.C., in Prince Albert v. Strange, 2 DeGex & Sm. 652, 695. “It being conceded that reasons of expediency and public policy can never be made the sole basis of civil jurisdiction, the question, whether upon any ground the plaintiff can be entitled to the relief which he claims, remains to be answered; and it appears to us that there is only one ground upon which his title to claim, and our jurisdiction to grant, the relief, can be placed. We must be satisfied, that the publication of private letters, without the consent of the writer, is an invasion of an exclusive right of property which remains in the writer, even when the letters have been sent to, and are still in the possession of, his correspondent.” Duer, J., in Woolsey v. Judd, 4 Duer 379, 384 (1855). 26. “A work lawfully published, in the popular sense of the term, stands in this respect, I conceive, differently from a work which has never been in that situation. The former may be liable to be translated, abridged, analyzed, exhibited in morsels, complimented, and otherwise treated, in a manner that the latter is not. “Suppose, however — instead of a translation, an abridgment, or a review — the case of a catalogue — suppose a man to have composed a variety of literary works (‘innocent,’ to use Lord Eldon’s expression), which he has never printed or published, or lost the right to prohibit from being published — suppose a knowledge of them unduly obtained by some unscrupulous person, who prints with a view to circulation a descriptive catalogue, or even a mere list of the manuscripts, without authority or consent, does that law allow this? I hope and believe not. The same principles that prevent more candid piracy must, I conceive, govern such a case also. “By publishing of a man that he has written to particular persons, or on particular subjects, he may be exposed, not merely to sarcasm, he may be ruined. There may be in his possession returned letters that he had written to former correspondents, with whom to have had relations, however harmlessly, may not in after life be a recommendation; or his writings may be otherwise of a kind squaring in no sort with his outward habits and worldly position. There are callings even now in which to be convicted of literature, is dangerous, though the danger is sometimes escaped. “Again, the manuscripts may be those of a man on account of whose name alone a mere list would be a matter of general curiosity. How many persons could be mentioned, a catalogue of whose unpublished writings would, during their lives or afterwards, command a ready sale! Knight Bruce, V.C., in Prince Albert v. Strange, 2 DeGex & Sm. 652, 693. 27. “A copy or impression of the etchings would only be a means of communicating knowledge and information of the original, and does not a list and description of the same? The means are different, but the object and effect are similar; for in both, the object and effect is to make known to the public more or less of the unpublished work and composition of the author, which he is entitled to keep wholly for his private use and pleasure, and to withhold altogether, or so far as he may please, from the knowledge of others. Cases upon abridgments, translations, extracts, and criticisms of published works have no reference whatever to the present question; they all depend upon the extent of right under the acts respecting copyright, and have no analogy to the exclusive rights in the author of unpublished compositions which depend entirely upon the common law right of property.” Lord Cottenham in Prince Albert v. Strange, 1 McN. & G. 23, 43 (1849). “Mr. Justice Yates, in Millar v. Taylor, said that an author’s case was exactly similar to that of an inventor of a new mechanical machine; that both original inventions stood upon the same footing in point of property, whether the case were mechanical or literary, whether an epic poem or an orrery; that the immorality of pirating another man’s invention was as great as that of purloining his ideas. Property in mechanical works or works of art, executed by a man for his own amusement, instruction, or use, is allowed to subsist, certainly, and may, before publication by him, be invaded not merely by copying, but by description or by catalogue, as it appears to me. A catalogue of such works may in itself be valuable. It may also as effectually show the bent and turn of the mind, the feelings and taste of the artist, especially if not professional, as a list of his papers. The portfolio or the studio may declare as much as the writing table. A man may employ himself in private in a manner very harmless, but which, disclosed to society, may destroy the comfort of his life, or even his success in it. Everyone, however, has a right, I apprehend, to say that the produce of his private hours is not more liable to publication without his consent, because the publication must be creditable or advantageous to him, than it would be in opposite circumstances. “I think, therefore, not only that the defendant here is unlawfully invading the plaintiff’s rights, but also that the invasion is of such a kind and affects such property as to entitle the plaintiff to the preventive remedy of an injunction; and if not the more, yet, certainly, not the less, because it is an intrusion — an unbecoming and unseemly intrusion — an intrusion not alone in breach of conventional rules, but offensive to that inbred sense of propriety natural to every man — if intrusion, indeed, fitly describes a sordid spying into the privacy of domestic life — into the home (a word hitherto sacred among us), the home of a family whose life and conduct form an acknowledged title, though not their only unquestionable title, to the most marked respect in this country.” Knight Bruce, V.C., in Prince Albert v. Strange, 2 DeGex & Sm. 652, 696, 697. 28. Kiernan v. Manhattan Quotation Co., 50 How. Pr. 194 (1876). 29. “The defendants’ counsel say that a man acquiring a knowledge of another’s property without his consent is not by any rule or principle which a court of justice can apply (however secretly he may have kept or endeavored to keep it) forbidden without his consent to communicate and publish that knowledge to the world, to inform the world what the property is, or to describe it publicly, whether orally or in print or writing. “I claim, however, leaving to doubt whether, as to property of a private nature, which the owner, without infringing on the right of any other, may and does retain in a state of privacy, it is certain that a person who, without the owner’s consent, express or implied, acquires a knowledge of it, can lawfully avail himself of the knowledge so acquired to publish without his consent a description of the property. “It is probably true that such a publication may be in a manner or relate to property of a kind rendering a question concerning the lawfulness of the act too slight to deserve attention. I can conceive cases, however, in which an act of the sort may be so circumstanced or relate to property such, that the matter may weightily affect the owner’s interest or feelings, or both. For instance, the nature and intention of an unfinished work of an artist, prematurely made known to the world, may be painful and deeply prejudicial against him; nor would it be difficult to suggest other examples. . . . “It was suggested that, to publish a catalogue of a collector’s gems, coins, antiquities, or other such curiosities, for instance, without his consent, would be to make use of his property without his consent; and it is true, certainly, that a proceeding of that kind may not only as much embitter one collector’s life as it would flatter another — may be not only an ideal calamity — but may do the owner damage in the most vulgar sense. Such catalogues, even when not descriptive, are often sought after, and sometimes obtain very substantial prices. These, therefore, and the like instances, are not necessarily examples merely of pain inflicted in point of sentiment or imagination; they may be that, and something else beside.” Knight Bruce, V.C., in Prince Albert v. Strange, 2 DeGex & Sm. 652, 689, 690. 30. Hoyt v. Mackenzie, 3 Barb. Ch. 320, 324 (1848); Wetmore v. Scovell, 3 Edw. Ch. 515 (1842). See Sir Thomas Plumer in 2 Ves. & B. 19 (1813). 31. Woolsey v. Judd, 4 Duer. 379, 404 (1855). “It has been decided, fortunately for the welfare of society, that the writer of letters, though written without any purpose of profit, or any idea of literary property, possesses such a right of property in them, that they cannot be published without his consent, unless the purpose of justice, civil or criminal, require the publication.” Sir Samuel Romilly, arg., in Gee v. Pritchard, 2 Swanst. 402, 418 (1818). But see High on Injunctions, 3d ed., §1012, contra. 32. “But a doubt has been suggested, whether mere private letters, not intended as literary compositions, are entitled to the protection of an injunction in the same manner as compositions of a literary character. This doubt had probably arisen from the habit of not discriminating between the different rights of property which belong to an unpublished manuscript, and those which belong to a published book. The latter, as I have intimated in another connection, is a right to take the profits of publication. The former is a right to control the act of publication, and to decide whether there shall be any publication at all. It has been called a right of property; an expression perhaps not quite satisfactory, but on the other hand sufficiently descriptive of a right which, however incorporeal, involves many of the essential elements of property, and is at least positive and definite. This expression can leave us in no doubt as to the meaning of the learned judges who have used it, when they have applied it to cases of unpublished manuscripts. They obviously intended to use it in no other sense, than in contradistinction to the mere interest of feeling, and to describe a substantial right of legal interest.” Curtis on Copyright, pp. 93, 94. “The resemblance of the right to prevent publication of an unpublished manuscript to the well recognized rights of personal immunity is found in the treatment of it in connection with the rights of creditors. The right to prevent such publication and the right of action for its infringement, like the cause of action for an assault, battery, defamation, or malicious prosecution, are not assets available to creditors. “There is no law which can compel an author to publish. No one can determine this essential matter of publication but the author. His manuscripts, however valuable, cannot, without his consent, he seized by his creditors as property. McLean, J., in Bartlett v. Crittenden, 5 McLean 32, 37 (1839). It has also been held that even where the sender’s rights are not asserted, the receiver of a letter has not such property in it as passes to his executor or administrator as a salable asset. Eyre v. Higbee, 22 How. Pr. (N.Y.) 198 (1861). “The very meaning of the word ‘property’ in its legal sense is ‘that which is peculiar or proper to any person; that which belongs exclusively to one.’ The first meaning of the word from which it is derived — proprius — is ‘one’s own.’ Drone on Copyright, p. 6. It is clear that a thing must be capable of identification in order to be the subject of exclusive ownership. But when its identity can be determined so that individual ownership may be asserted, it matters not whether it be corporeal or incorporeal. 33. “Such then being, as I believe, the nature and the foundation of the common law as to manuscripts independently of Parliamentary additions and subtractions, its operation cannot of necessity be confined to literary subjects. That would be to limit the rule by the example. Wherever the produce of labor is liable to invasion in an analogous manner, there must, I suppose, be a title to analogous protection or redress.” Knight Bruce, B.C., in Prince Albert v. Strange, 2 DeGex & Sm. 652, 696. 34. “The question, therefore, is whethe
  31. Wow! that was long!
    the police are just there to serve and protect. The best way to get that cop to turn off his camera is to put one on him!

  32. you want to take back the country?

    eliminate the income tax and prevent the government from having any money to spend except what we give it.

    Repeal the 16th amendment.

    The government takes our rights away using our money to do it.

  33. Carol,

    I agree. Low tech also works well for a police state! High tech brings in more money and I’d be surprised if there wasn’t equipment all around that you didn’t see (to include space satellites) but the principle is the same. We are all being tracked and having our information put in multiple databases, “public” and private (all secret to us).

    The administration’s M.O. is to make the illegal “legal”. This court argument is an example of that. I wish Anonymous could reach into their computers and release the databases to the public, or that someone would leak them. It would be like what happened in East Germany. After that corrupt govt. failed, people went through their files. They had done nothing yet there were reams of information collected on them. We need to see what this govt. has done to us.

  34. In the oral arguments and/or the briefs, did anyone even bother to attempt to establish what the problem is with simply requiring a judicial warrant for GPS vehicle tracking? What is the harm? Why sweat that requirement?

    Also, I generally find the coverage of SCOTUS cases at arstechnica pretty interesting. As a tech blog, they are usually interested in so-called “IP” issues, but cover stuff like surveillance issues pretty frequently. Here’s their coverage of the oral arguments in this case:


    Apparently a lot of the discussion revolved around what people’s expectations were regarding GPS tracking and things like photo-recognition and tracking from systems like red light cameras. Here’s the author’s comment on that discussion:

    “Of course, this has a troubling circularity to it. It seems to suggest that GPS tracking would become legal under the Fourth Amendment if it became sufficiently commonplace that people started expecting it. But the same reasoning could be used to justify almost any surveillance, provided that the government publicize the fact that the surveillance was being conducted. Surely the legality of surveillance depends on more than just whether people know it’s occurring.”

    The author was also disappointed that the arguments didn’t pursue the “mosaic theory” presented in lower courts. The idea is that when it comes to collecting information about people the sum can be much greater than the collection of the parts (for example, knowing that a woman visited an OB/GYN doesn’t tell you much, but if you also know that she subsequently bought items at a Babies-R-Us and a maternity clothing store, then you probably know something very important about her that is much more important and personal than simply what shops she frequents.) The arguments in this case were probably oriented to getting the conviction overturned, but didn’t touch much on the bigger legal picture related to surveillance technologies and how they can be interconnected to gather and infer extraordinary knowledge of citizen’s lives.

  35. Nope, that didn’t work. (I guess we can’t post inline images.)

    I think this is a bit of an exaggeration, but this artist (Dustin Spagnola) created an amazing visual summary of what a lot of us see going on with the current president all too often:


    Scroll down a bit to see the original permission graffiti installation of the work.

  36. It seems that there are two areas of objection. One is that any surveillance in public is bad, and then there is the use of technology to fix the location of people. I think that the first is a not a valid concern since there is no privacy concern in public nor is there any right to be anonymous. When the Constitution was written, most people lived in small towns in which the sherrif and all other residents mostly knew each other by sight. So when walking down a street most people you ran into knew you by name and reputation. When you join in a political demonstration, you are losing all your anonymity by that act alone, so there is no violation of rights if the cops film you.

    I think that entering or placing any device on anothers personal property can only be justified by a warrant, and that kind of thing, I hope will be allowed only with a warrant. All other uses of technology I think it quite legitimate since the user knows or should know the uses to which that technology can be put to use by the cops.. As for such things leading to a police state, so far I think that is way overblown since much worse was done during the anti-Vietnam war movement and the civil rights movement,yet both succeeded despite official oppression. So I am not so worried as most since I have experienced far worse and I’m still here.

  37. Rafflaw, until I saw a cordon of 12 plainclothed officers standing in front of us so we were blocked from being seen by pedestrians or cars, I never thght bad of police, in fact Each time I went, I would thank the police for being there. That day i felt that there was an air of provocation.
    Jill, Low tech, high tech, I am sure it is everywhere. We need a deep throat, or woodward and berbnstein but instead what Michael Jackson and Kardashian are more important.

    Aother link, New York Immigration Advocates Say Upstate Border Control Abusing Power


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