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Zoltan Istvan is a futurist, transhumanist, author of The Transhumanist Wager, and a Libertarian candidate for California Governor.

The constant onslaught of new technology is making our lives more public and trackable than ever, which understandably scares a lot of people. Part of the dilemma is how we interpret the right to privacy using centuries-old ideals handed down to us by our forbearers. I think the 21st century idea of privacylike so many other taken-for-granted conceptsmay need a revamp.

When James Madison wrote the Fourth Amendmentwhich helped legally establish US privacy ideals and protection from unreasonable search and seizurehe surely wasn't imagining Elon Musk's neural lace, artificial intelligence, the internet, or virtual reality. Madison wanted to make sure government couldn't antagonize its citizens and overstep its governmental authority, as monarchies and the Church had done for centuries in Europe.

For many decades, the Fourth Amendment has mostly done its job. But privacy concerns in the 21st century go way beyond search and seizure issues: Giant private companies like Google, Apple, and Facebook are changing our sense of privacy in ways the government never could. And many of us have plans to continue to use more new tech; one day, many of us will use neural prosthetics and brain implants. These brain-to-machine interfaces will likely eventually lead to the hive mind, where everyone can know each other's precise whereabouts and thoughts at all times, because we will all be connected to each other through the cloud. Privacy, broadly thought of as essential to a democratic society, might disappear.

The key is to make sure government is engulfed by ubiquitous transparency too.

"While privacy has long been considered a fundamental right, it has never been an inherent right," Jeremy Rifkin, an American economic and social theorist, wrote in The Zero Marginal Cost Society. "Indeed, for all of human history, until the modern era, life was lived more or less publicly, as befits most species on Earth."

The question of whether privacy needs to change is really a question of functionality. Is privacy actually useful for individuals or for society? Does having privacy make humanity better off? Does privacy raise the standard of living for the average person?

In some ways, these questions are futile. Technological innovation is already calling the shots, and considering the sheer amount of new tech being bought and used, most people seem content with the more public, transparent world it's ushering in. Hundreds of millions of people willingly use devices and tech that can monitor them, including personal home assistants, credit cards, smartphones, and even pacemakers (in Ohio, a suspect's own pacemaker data will be used in the trial against him.) Additionally, cameras in cities are ubiquitous; tens of thousands of fixed cameras are recording every second of the day, making a walk outside one's own home a trackable affair. Even my new car knows where I'm at and calls me on the car intercom if it feels it's been hit or something suspicious is happening.

Because of all this, in the not so distant futureperhaps as little as 15 yearsI imagine a society where everybody can see generally where anyone else is at any moment. Many companies already have some of this ability through the tech we own, but it's not in the public's hands yet to control.

Massive openness must become a two-way street.

For many, this constant state of being monitored is concerning. But consider that much of our technology can also look right back into the government's world with our own spying devices and software. It turns out Big Brother isn't so big if you're able to track his every move.

The key with such a reality is to make sure government is engulfed by ubiquitous transparency too. Why shouldn't our government officials be required to be totally visible to us all, since they've chosen public careers? Why shouldn't we always know what a police officer is saying or doing, or be able to see not only when our elected Senator meets with lobbyists, but what they say to them?

For better or worse, we can already see the beginnings of an era of in which nothing is private: WikiLeaks has its own transparency problems and has a scattershot record of releasing documents that appear to be politically motivated, but nonetheless has exposed countless political emails, military wires, and intel documents that otherwise would have remained private or classified forever. There is an ongoing battle about whether police body camera footage should be public record. Politicians and police are being videotaped by civilians with cell phones, drones, and planes.

But it's not just government that's a worry. It's also important that people can track companies, like Google, Apple, and Facebook that create much of the software that tracks individuals and the public. This is easier said than done, but a vibrant start-up culture and open-source technology is the antidote. There will always be people and hackers that insist on tracking the trackers, and they will also lead the entrepreneurial crusade to keep big business in check with new ways of monitoring their behavior. There are people hacking and cracking big tech's products to see what their capabilities are and to uncover surreptitious surveillance and security vulnerabilities. This spirit must extend to monitoring all of big tech's activities. Massive openness must become a two-way street.

And I'm hopeful it will, if disappearing privacy trends continue their trajectory, and if technology continues to connect us omnipresently (remember the hive mind?). We will eventually come to a moment in which all communications and movements are public by default.

Instead of putting people in jail, we can track them with drones until their sentence is up

In such a world, everyone will be forced to be more honest, especially Washington. No more backdoor special interest groups feeding money to our lawmakers for favors. And there would be fewer incidents like Governor Chris Christie believing he can shut down public beaches and then use them himself without anyone finding out. The recent viral phototaken by a plane overheadof him bathing on a beach he personally closed is a strong example of why a non-private society has merit.

If no one can hide, then no one can do anything wrong without someone else knowing. That may allow a better, more efficient society with more liberties than the protection privacy accomplishes.

This type of future, whether through cameras, cell phone tracking, drones, implants, and a myriad of other tech could literally shape up America, quickly stopping much crime. Prisons would eventually likely mostly empty, and dangerous neighborhoods would clean upinstead of putting people in jail, we can track them with drones until their sentence is up. Our internet of things devices will call the cops when domestic violence disputes arrive (it was widely reportedbut not confirmedthat a smarthome device called the police when a man was allegedly brandishing a gun and beating his girlfriend. Such cases will eventually become commonplace.)

A society lacking privacy would have plenty of liberty-creating phenomena too, likely ushering in an era similar to the 60s where experimental drugs, sex, and artistic creation thrived. Openness, like the vast internet itself, is a facilitator of freedom and personal liberties. A less private society means a more liberal one where unorthodox individuals and visionariesall who can no longer be pushed behind closed doorswill be accepted for who or what they are.

Like the Heisenberg principle, observation, changes reality. So does a lack of walls between you and others. A radical future like this would bring an era of freedom and responsibility back to humanity and the individual. We are approaching an era where the benefits of a society that is far more open and less private will lead to a safer, diverse, more empathetic world. We should be cautious, but not afraid.

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Liberty Might Be Better Served by Doing Away with Privacy - Motherboard

If you are driving without a valid driver's license can the police, in this case the Los Angeles Police Department, impound your vehicle?

That question is too easy for you smart readers, even for you average readers. How's this: If you can prove you have a valid driver's license, can you get your impounded car back? That's our case of the day, case du jour.

Never lend your car to your brother-in-law

Lamya Brewster loaned her car to Yonnie Percy, her brother-in-law. Brewster later learned she should have asked Percy if he had a valid driver's license. He didn't. Percy was stopped by LAPD officers, who quickly determined his driver's license was suspended. The officers seized the vehicle under California Vehicle Code 14602.6(a)(1).

Brewster filed a class action lawsuit on behalf of all vehicle owners whose vehicles were subjected to the 30-day impoundment, claiming the impound is a warrantless seizure that violates the Fourth Amendment. The federal trial court ruled for the LAPD. Brewster appealed.

Vehicle Code 14602.6

Vehicle Code 14602.6(a)(1) authorizes impounding a vehicle when the driver has a suspended license. Vehicles seized must be held in impound for 30 days, which is to deter unlicensed drivers or drivers with suspended licenses from driving. No problem with that.

Give Me My Car Back

Three days after the impoundment, Brewster documented she was the registered owner of the vehicle and had a valid California driver's license. She offered to pay all towing and storage fees, but the LAPD refused to release the vehicle before the mandatory 30-day holding period had lapsed. That was the legal issue.

Brewster filed a class action lawsuit on behalf of all vehicle owners whose vehicles were subjected to the 30-day impoundment, claiming the impound is a "warrantless seizure that violates the Fourth Amendment." The federal trial court ruled for the LAPD. Brewster appealed.

Fourth Amendment Seizure

The federal Court of Appeals, with an opinion written by the brilliant Judge Alex Kozinski, ruled that because a 30-day impound is a "meaningful interference with an individual's possessory interests in [his] property," the Fourth Amendment is implicated.

The impoundment/seizure is justified under the Fourth Amendment only to the extent that the government's justification holds force. But after Brewster proved she had a valid driver's license, there was no justification to hold her vehicle.

Once Brewster proved she had a valid driver's license, she was entitled to her car. Mandatory 30-day hold unconstitutional. Makes sense to me.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno, Nevada. His practice areas include: development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached atporter@portersimon.comorhttp://www.portersimon.com.

Originally posted here:
Law Review: Never lend your car to your brother-in-law - Sierra Sun

Intel founder Gordon Moore once predicted that computing power would double every two years, an observation that would eventually be dubbed Moore's Law and used to show just how quickly technology advances.

Technology is no doubt rapidly evolving as Moore's Law says, but the laws that govern technology often take decades to catch up. In protecting individual privacy, preventing government overreach, and dealing with terrorist threats, our government has lagged.

In a time of continuing concern over balancing personal privacy and national security, laws like the 1986 Electronic Communications Privacy Act that govern stored communication simply aren't up to snuff. Many arms of the federal government use general warrants warrants not aimed at a specific person to collect massive amounts of data in blatant violation of the Fourth Amendment. Often, this data is collected against the will of the companies who store them and often without probable cause against the users.

An ongoing battle between the federal government and Microsoft has put this all on display and revealed many of our system's current faults. To change this, Congress should look to passing things like the Email Privacy Act, a bipartisan bill that will protect customer data and help law enforcement wade through the morass of information they collect when seeking to root out potential threats.

The typical argument in favor of allowing the federal government broad authority on this issue is that it allows them access to a broad swath of necessary information. In other words, the more information, the better. But while this is a convenient excuse for mass data collection, many believe that intelligence agencies are overwhelming themselves with too much information to keep track of credible threats. In many cases, the federal government is warned about a suspect, but then he falls through the cracks.

In the case of the Pulse nightclub shooter, the Boston marathon bombers, and the shooters in Garland, Texas, in 2015, warning signs abounded. Omar Mateen had been interviewed twice by the FBI after being reported by members of his local mosque. The CIA and FBI were warned about the Tsarnaev brothers long before they committed their heinous acts. One of the shooters in Garland had previously been arrested.

So if the government had known about them, why weren't their plans thwarted? One possible explanation is that the sheer number of false leads that are obtained through use of mass collection caused by outdated laws like the ECPA had distracted from true threats. Mass collection of emails can lead to thousands of false leads, sending law enforcement running in circles. The Email Privacy Act will not only help solve this problem but will strengthen our Fourth Amendment protections from unreasonable search and seizure.

Introduced by Reps. Jared Polis, D-Colo., and Kevin Yoder, R-Kan., this bill has wide bipartisan support. Similar legislation passed the House last year by a vote of 419-0 with an astounding 300 co-sponsors. After failing to advance in the Senate because of issues related to pork barrel spending, this bill finally has a chance this session to become law. By passing it, Congress will help protect businesses and consumers from government overreach and strengthen our national security by allowing law enforcement to focus on credible threats, not black holes of information.

With such wide support for similar bills in the past, this could be an easy win for the Trump administration. By keeping our federal government from being overwhelmed by false leads and by preventing unconstitutional general warrants, we'll be able to rein in big government and help modernize the laws governing our system in the process.

Government will never advance as fast as Moore's Law, but after three decades of stagnation, it's finally time to catch up.

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Mass surveillance gets in the way of fighting terrorism - Washington Examiner

U.S. Court of Appeals for the D.C. CircuitPresident Donald Trump will soon have the opportunity to fill a key vacancy on the federal bench. As The Wall Street Journal and Buzzfeed have reported, Janice Rogers Brown, an outspoken federal judge with strong libertarian tendencies, will retire next month after serving 12 years on the U.S. Court of Appeals for the District of Columbia Circuit.

A former California Supreme Court justice, Brown was first nominated to the federal judiciary in 2003 by President George W. Bush, but Senate Democrats repeatedly blocked her confirmation. She was eventually confirmed in 2005.

During her tenure on the D.C. Circuit, Brown emerged as a powerful voice in defense of civil and economic liberties. In the 2015 case of United States v. Gross, for example, Brown filed a sharp dissent lambasting the pro-police "prevailing orthodoxy" in Fourth Amendment cases. The right to be free from unreasonable search and seizure, Brown maintained, should clearly forbid law enforcement from conducting "a rolling roadblock that sweeps citizens up at random and subjects them to undesired police interactions culminating in a search of their persons and effects." Yet somehow "our case law considers such a policy consistent with the Fourth Amendment." Brown disagreed: "I continue to think this [case law] is error."

Brown has been equally critical of government malfeasance in the economic realm. In the 2012 case of Hettinga v. United States, for instance, Brown came out swinging against the Supreme Court case law that left the D.C. Circuit with no choice but to uphold a federal price-rigging scheme that made it illegal for an upstart family dairy farm to bottle and sell its own milk for 20 cents less than the competition. This case "reveals an ugly truth," Brown wrote. "America's cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s."

Brown also has the distinction of being denounced as a crazy libertarian by Barack Obama. In 2005, then-Sen. Obama voted against Brown's confirmation to the D.C. Circuit because he disliked her views on economic liberty and the Constitution. "One of the things that is most troubling is Justice Brown's approval of the Lochner era of the Supreme Court," Obama said, referring to Lochner v. New York, the 1905 case in which the Supreme Court struck down a state economic regulation because it served no legitimate health or safety purpose and thus violated the 14th Amendment. As it happens, Obama is the one who is wrong about Lochner.

The news of Brown's retirement has already prompted speculation and debate about her possible replacement. At The Volokh Conspiracy, Case Western law professor Jonathan Adler suggests that the Trump administration may want "to use the D.C. Circuit opening to break the apparent logjam over nominations to the U.S. Court of Appeals for the 5th Circuit." That logjam, which has been extensively covered and analyzed by David Lat at Above the Law, boils down to this: There are currently two Texas openings on the 5th Circuit and three real contenders in the running. Each contender has the support of powerful political figures in Texas.

One of the three contenders is Texas Supreme Court Justice Don Willett. Because Willett recently appeared on Donald Trump's Supreme Court shortlist, he would seem to be a natural pick for the 5th Circuit. But Texas politics have so far apparently prevented any 5th Circuit nominees from being named. The solution now proffered by Adler is for Trump to nominate Willett (or one of the other two) to the D.C. Circuit and thus make federal appellate judges out of all three in one swoop.

Hugh Hewitt, the conservative talk radio host and influential political pundit, is now pushing this very plan. "The retirement of Judge Janice Rogers Brown solves 5th logjam problem. @JusticeWillett to D.C. Circuit," Hewitt recently tweeted.

Nominating Willett to the D.C. Circuit does make sense. Besides breaking the "logjam," it would replace the liberty-minded Brown with the liberty-minded Willett. Much like Brown, Willett is famous for his judicial benchslaps against both overreaching law enforcement and against overreaching government regulators.

If the White House is looking for a fitting replacement for Janice Rogers Brown on the D.C. Circuit, Don Willett would appear to be it.

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Janice Rogers Brown, America's Most Libertarian Federal Judge, Is Retiring - Reason (blog)

Back in 1986, Congress viewed communications over six months old to be abandoned and therefore subject to reduced protection, a notion that looks quaint today when emails and texts may be held for years.

Another provision of the statute allows investigators to obtain information from the provider about a subscriber to any electronic service, like cellphones, by seeking a court order based on reasonable grounds to believe that the records are relevant to a criminal investigation. This is a lower standard than probable cause, the usual requirement for a search warrant.

It is this lower threshold for getting information that is at issue in Carpenter v. United States, which the Supreme Court will hear in its next term starting in October.

The defendants were convicted of organizing a string of robberies in the Detroit area where they served as lookouts by parking near the stores. The government obtained orders directing wireless carriers to provide cell site location information showing where different numbers linked to the crew conducting the robberies were at the time of the crimes. Armed with data from various cell towers, prosecutors showed at trial that the defendants phones were a half-mile to two miles from the robberies, helping to link them to the actual perpetrators.

The defendants sought to suppress that information, arguing that it constituted a search of their phones so that the reasonable grounds standard in the Stored Communications Act for the order did not meet the probable cause requirement of the Fourth Amendment.

The United States Court of Appeals for the Sixth Circuit in Cincinnati rejected that claim, finding that although the content of personal communications is private, the information necessary to get those communications from point A to point B is not. Therefore, the defendants had no privacy interest in the information held by the carriers about their location and the constitutional probable cause requirement did not apply.

The Carpenter case raises a fundamental question about how far the privacy protection in the Fourth Amendment, which by its terms applies to persons, houses, papers and effects, should reach in protecting data generated by a persons electronic devices. Chief Justice John G. Roberts Jr. wrote in Riley v. California, a 2014 decision, that cellphones are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.

In Riley, the court found that a warrantless search of an arrestees cellphone was unconstitutional, explaining that what distinguishes the device from other items that might be found on a person that the police could look at is their immense storage capacity. But rummaging through the contents of a phone or computer is not necessarily the same as getting site information that is broadcast to the carrier, especially when a person may enable it by using an app like Find My Phone.

In a 2012 case, United States v. Jones, the Supreme Court found that the use of a GPS tracker attached to a car was a search governed by the Fourth Amendment. Justice Sonia Sotomayor explained in a concurring opinion that the privacy interests in a persons specific location required investigators to get a warrant because gathering that information enables the government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.

In the Carpenter case, the justices will have to weigh whether cell site data is different from a GPS tracker because learning where a person is within about a one-mile radius may not be a sufficient invasion of privacy to come within the Fourth Amendment. Nor does obtaining the location of a cellphone reveal the content of any communication, only that a call was made, so the protection afforded by the Riley decision may not apply.

Another case involving the Stored Communications Act that may come before the justices concerns the territorial reach of a warrant authorizing investigators to obtain emails held by Microsoft. The United States Court of Appeals for the Second Circuit in Manhattan, in Microsoft v. United States, found that the warrant did not apply to emails stored on a server in Dublin because there was no indication in the statute that Congress intended to authorize a search outside the United States.

The Justice Department filed a petition with the Supreme Court on June 22 asking for a review of that decision, arguing that it was wrong, inconsistent with this courts framework for analysis of extraterritoriality issues, and highly detrimental to criminal law enforcement. Those requests are often granted because the justices rely on the solicitor generals office to identify cases that have significant law enforcement implications.

Another factor in favor of granting review is that the Second Circuits decision has not been followed by federal district courts in Philadelphia, San Francisco, Washington and Wisconsin, which have enforced warrants to produce email records that may have been stored abroad. A note in the Harvard Law Review criticized the decision because it did not acknowledge the un-territorial nature of data.

Microsoft is fighting the effort to apply the Stored Communications Act to electronic records held outside the United States, pointing out in a company blog post that the European Unions new General Data Protection Regulation scheduled to go into effect next year will make it illegal to transfer customer data from Europe to the United States. That could put global technology organizations like Google and Microsoft in the difficult position of balancing demands for greater privacy with efforts to investigate crime that could result in large fines for failure to comply.

Determining how digital information fits under a constitutional protection adopted when there were only persons, homes, papers and effects that could be searched requires the Supreme Court to figure out the scope of privacy expectations in a very different world from the 18th century. The problem is that legal challenges take a piecemeal approach to a statute adopted over 30 years ago, and the courts cannot rewrite provisions that may be hopelessly out of date.

The House of Representatives adopted the Email Privacy Act in February to modernize the protections afforded electronic communications that would require obtaining a search warrant in almost every case. That proposal met resistance in the Senate last year when Attorney General Jeff Sessions, then a senator from Alabama, sought to add a provision allowing law enforcement to skip the warrant requirement in emergency situations.

Whether the legislation can get through the current Senate is an open question, and it is not clear whether President Trump would sign off if the Justice Department opposes the bill. That may mean the Supreme Court will have to establish the broad parameters of digital privacy while Congress tries to deal with the intricacies of a world of electronic communication that continues to evolve rapidly.

Devices connected to the internet, from cellphones to watches to personal training trackers that facilitate our personal habits and communications, are a fact of daily life, and the Supreme Court will have to start drawing clear lines around what types of electronic information are and are not protected by the Fourth Amendment. Simply asserting that there is a right to privacy does not provide much help in determining how far that protection should extend in a digital world.

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Digital Privacy to Come Under Supreme Court's Scrutiny - New York Times