Privacy v. Free Speech? Not today . . .


A very broad collection of the phone records of AP reporters, including phone lines at their offices, homes and cell phones.

The law seems clear that you can obtain phone records (e.g., the numbers dialed) with a subpoena. The law doesn’t require a heightened test when seeking the phone records of journalists. That the records included personal information (e.g., home lines) isn’t protected under a privacy right (see previous two sentences). There isn’t a ruling that such action chills free speech. This may partially be because the law seems equally clear that journalists can publish what they want.

On the surface, the government’s search seems very broad and possibly in violation of its own regulations on obtaining information about journalists and their sources. Where the government violates its own rules, an argument for arbitrary and capricious action can be made. This can sometimes result in relief, though usually very specific and limited. I’m not familiar with any case law that applies that standard in these facts.

It does leave a bad taste in one’s mouth. Seems like something they do in “those other countries” that we thank our lucky stars we weren’t born into.

Phone records are but one source of information. The government’s position is that it can obtain emails stored in the cloud if they are more than 180 days old. (If ever there was an argument for the IMAP standard to be universal, this is it.) Pull all your email down from the cloud and encrypt your computer. Don’t leave email on your mobile devices either!

Sigh. Use an out of the country email service that doesn’t retain the key to your encrypted email stored on the server. Then, get all your friends to use it too since the service automatically encrypts email that is to and from the same domain. (Hushmail anyone?)

Not that services like these are the answer. Your ISP is in your country and there is evidence that https can be hacked by national security agencies. Still, it’s not often that you are going to be the target of a national security agency. I mean, who is going to store all those communications and then hack them at a later date when they may or may not be relevant to a national security investigation.

2 thoughts on “Privacy v. Free Speech? Not today . . .

  1. Nothing is foolproof, but there is some additional protection from Canadian law, some additional technical hurdles, and because it’s just a hassle to try and obtain evidence in a criminal investigation from another country. Maybe I can slow them down enough while I skip to Venezuela with my millions. 😉

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