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JiHyunParkFirstEssay 2 - 11 Nov 2024 - Main.EbenMoglen
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< | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | Ownership of Data in light of the Government's Subpoena Powers | | | The Right Balance?
Could there be a right balance between privacy and criminal investigations? Finding individual culpability may become increasingly difficult as specific data becomes hidden behind individual privacy protections and third-party subpoenas become unavailable. However, I can foresee that for the investigations of large criminal organizations and enterprises, it may be possible to gather evidence through old methods of physical search warrants (of grabbing the individual’s own computer records) and directly going undercover to become part of the organization to directly obtain evidence. However, based on society’s propensity for some measure of criminal enforcement (the majority of Americans feel it is acceptable for the government to use surveillance tools during criminal investigations(7)), the rights of privacy may result in losing some protections in the criminal justice system. | |
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It's not clear to me what this draft is about. There seems to be a basic legal error involved in the claim that self-hosted data is somehow exempt from the process of criminal investigation. Search warrants exist, of course. Seizure and search of witness's and targets' devices is routine.
So all the rather bot-like rhetoric about balancing "safety from horrendous crimes" against privacy rights based on unrealistic speculation that self-hosting will destroy law enforcement doesn't make much sense.
The two routes to improvement are more substantive insight and clarity of expression. Chart-bot drafting has to go: we need clear, simple sentences each presenting an idea that advances a well-defined and closely-outlined thesis. And we need that thesis. Perhaps an office-hour discussion will help.
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JiHyunParkFirstEssay 1 - 23 Oct 2024 - Main.JiHyunPark
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
Ownership of Data in light of the Government's Subpoena Powers
-- By JiHyunPark - 23 Oct 2024
Introduction
The era of the internet as it is today creates an enormous amount of surveillance towards individuals which presents a concerning breach of privacy to those using the internet and associated tools such as a smartphone. This results in a massive and concerning amount of data collection which can be used to track and monitor personal information from preferences to location data at any given time. On the one hand, the gathered data may be a critical tool to track down dangerous criminals through tools such as subpoena of private companies for information such as emails, bank information, and even GPS location at a certain time without the user knowing. While private corporate third-party control over our data poses a significant concern and risk to our liberty and control over our personal information, the government’s access imposes another layer of concern due to the intrusive and reaching power of the government. Specifically, the government’s access to the data provided by the companies may result in direct loss of liberty through the criminal adjudication process. Through criminal investigation, the information collected by these companies could become the critical piece of evidence that takes away your personal rights and physical freedom through incarceration. At the same time, these tools provide critical pieces of evidence to capture and prevent crimes ranging from fraud to horrific criminal activity such as child pornography. How can we balance the desire to have protection from the intrusiveness granted by third-party information databank access by the government and our desire to create a safer society from abhorrent criminal activity?
The Subpoena Power
The subpoena power by the Department of Justice and enforced by the courts is one of the greatest breaches of our privacy regarding Internet data. The government could access the enormous amount of data collected by several third parties to gather incredibly revealing information about individuals. The government could obtain (and they frequently obtain) significant personal information about an individual such as medical and financial records, contents of email messages, and phone company/ Internet service provider logs (1). The amount of information that third parties hold is massive and can be used to individually target and link your actions to the charged crime. The reach of government power to demand data from third-party companies has extended beyond just American citizens into the possibility of the government being able to demand data from overseas (2). The amount of data and breach of privacy implied by this grant of power by the courts is astounding as it is concerning. Not only can our government reach and access the personal information of its citizens and inhabitants, but it can also reach beyond its borders (3). Even if the private third-party companies were, in a perfect world, to provide airtight protections over the data that they acquire from their users, the concern over government access to these data through a subpoena would remain as large as it is now (4).
Cutting out Third Parties
If society were to shift away from using the internet and relevant technology that is overseen and controlled by private companies as it is now, how would this look for the government’s criminal investigation and trial procedures? In one spectrum, as Professor Moglen suggested, is absolute ownership of our personal data through creating and establishing our own servers and other relevant technology away from third parties. This would prevent a third-party subpoena from being effective, especially since the only way to access this data would be to directly serve the subpoena to the person being investigated. In such a world, you would be exchanging privacy and ownership of personal information with the loss of an effective criminal investigation and enforcement system. In the current scheme, the use of subpoena data plays such a crucial role in criminal investigations that the denial of such information may cripple current investigation methods. It may result in a situation where for privacy, criminals would run free.
Because the person (the suspected criminal defendant) who can provide any incriminating data is the sole owner of that data, investigation and subsequent presentation of evidence in a criminal trial will become increasingly onerous if not impossible. The current law regarding the subpoena of individual papers directly from the defendant is murky. Although there originally was clear protection that the Fifth Amendment prohibited access to personal papers held by the target, subsequent cases by the Supreme Court have suggested otherwise (5)? " target="_top">https://academic.oup.com/chicago-scholarship-online/book/17233/chapter/174630093][(5)]]. A part of it is likely due to the expansive use and lack of clear constitutional protections for third-party subpoenas (6). However, if the only way to obtain clear and convincing evidence is by the defendant giving up incriminating personal information, it would result in the evidence standards and criminal defendant protections favoring the prosecution even more than it does now.
The Right Balance?
Could there be a right balance between privacy and criminal investigations? Finding individual culpability may become increasingly difficult as specific data becomes hidden behind individual privacy protections and third-party subpoenas become unavailable. However, I can foresee that for the investigations of large criminal organizations and enterprises, it may be possible to gather evidence through old methods of physical search warrants (of grabbing the individual’s own computer records) and directly going undercover to become part of the organization to directly obtain evidence. However, based on society’s propensity for some measure of criminal enforcement (the majority of Americans feel it is acceptable for the government to use surveillance tools during criminal investigations(7)), the rights of privacy may result in losing some protections in the criminal justice system.
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