Computers, Privacy & the Constitution

What Can We Do?

As Eben and others have mentioned throughout the term people are only too happy to give away scads of private information on the internet. No widely used browser comes with a preloaded ad-blocker and most people are simply not proactive enough to take the 2 minutes to install a Firefox add-on. However, what is most worrying is that we have gotten to a point now where most people simply do not realize when they are being tracked and giving away information about themselves. When iPhone apps are sending information back to their developers and companies can determine what kind of life you live by following you on your smart phone, it is hard not feel like we are constantly losing ground in the fight for our own freedom and privacy. However, there is a flip side to all of this that I feel we have not spent as much time on this year, which is that a world beyond forgetting can hurt the government, police, and legal system as much as it harms us.

On New Year’s Day 2009 a young black man named Oscar Grant was detained on a BART platform in Oakland. A few minutes later, Grant (who was 22) was dead and a remarkable new controversy had begun. Though it unclear exactly what transpired between Grant and Officer Johannes Mehserle on that platform, their interaction ended tragically. Grant was forced to lay face down on the platform where he was then shot—essentially execution style—by Mehserle. Mehserle has claimed that he thought he was using his Taser not his gun; others have suggested that it might have simply been a tragic mistake. California as a State is no stranger to hostile and at time violent interactions between the police and black citizens: Watts, Rodney King, etc. Indeed, this event would end up bearing a striking similarity to the Rodney King incident 18 years earlier.

In this case, while the officers were detaining Grant and two other suspects a large crowd, both on the platform and on a passing train, were very vocally expressing their displeasure with the officers. Moreover, many people in the crowd took videos of the event from many different angles (up to and including the shooting) on their cell phones and digital cameras. Almost immediately these videos were being widely distributed on the internet and were receiving thousands upon thousands of hits on YouTube? . Moreover, at least one online sight also encouraged people to “Digg” the story so that the national media might pick it up. So like the video of Rodney King being beaten by the LAPD 18 years earlier Oscar Grant’s story was suddenly broadcast across America.

The difference though is that while King’s beating also became a national news event, it was dependent on the media of the day (newspapers, television news, etc) to spread the story. In the case of Oscar Grant the public dissemination of his story and the video of his tragic death quickly reached more people and in a far more unadulterated and gritty form than King’s story did, thanks almost entirely to the internet. The internet has spread the web of public opinion further out into society than was previously possible. Now, news stories and events that many people who do not regularly read newspapers or watch the news on TV might not have seen are quickly spread to a much greater audience thanks to the internet.

The point of telling Oscar Grant’s story though was not simply to show how the internet has changed social dynamics in terms of how and where people get their news today. As a recent article in the New York Times mentioned, the use of the internet by jurors is leading to an increasing number of mistrials. This article, along with the Grant case and our discussions of the problems with the criminal justice system and the weakening of the traditional protections enshrined in certain amendments of the Constitution in the Internet Age got me thinking about what people like us could do to fight back.

To me this seems like the perfect time to fight fire with fire and try what I can only think to call internet based civil disobedience. The hallmark of the American criminal justice system is the trial by an impartial jury. Obviously it is silly and dangerous to try and force a mistrial by purposefully using the internet to do research about a case when you are empanelled as a juror; you would be running a very real risk of being held in contempt of court and facing serious consequences. So while using the internet to directly interfere with an ongoing trial is out, what about a preemptive blocking campaign?

If no major cases could go to trial because the information about the case was plastered all over the internet in such a way as to be unavoidable it would be a serious blow to the criminal justice system. If it became impossible to actually find your twelve impartial “angry men” for important and high profile cases then something would have to be done. Now I’ll admit that I do not know exactly how this might be accomplished—in terms of actually getting all this critical information distributed in such a ubiquitous way online—but it seems to me that this might be one of our main chances to actually change the system. After all, if you make a system, including the justice system, unworkable it will have to change somehow.

There are a ton of problems with this idea going all the way up to the issue of what the goals of such a movement would be. Would we demand changes to the problem of how easy it has become to subpoena personal information off the internet that a person did not realize was still extant, or any of the other issues we have discussed term? There is also the clear fear that instead of change, the organizers of a movement such as this will only get themselves in trouble and things will continue apace. My goal here was to try and start a discussion about ways that we can affect real change from our position as young law students and firebrands. The first idea that I came up with and wanted to put forward to this group was to use the internet age and an age that is beyond forgetting to reduce the efficacy and power, in whatever way, of the government and legal system that is slowly using those same tools to curtail and erode our rights, freedoms, and legal protections. e

-- AlexLawrence - 09 May 2009

This was not the paper I had planned on writing here. I was originally going to look into the Emergency Powers Doctrine after Eben mentioned it in class and try to evaluate it in terms of the topics we discussed in class and the age we now live in. However, in the end I couldn't find a path to take for that paper that I enjoyed, and so my thoughts turned to asking the question that I thought needed to be asked: after a term's worth of lectures, discussions, and ideas what is there, in an immediate sense, that we could actually do to try and fight some of the problems we spoke about this term? I had heard about the Grant case months ago and it seemed like the perfect jumping off point, but I would love to hear what people have to say about this idea in general and any ideas people might have to make it more workable, or other forms a campaign like this might take. Either way, I hope it gets you all thinking a bit.

-- AlexLawrence - 09 May 2009


It seems to me that your proposition suffers from a few major flaws. Most fatally, your suggestion that through civil disruption via information spreading, “[n]o major cases could go to trial because the information about the case was plastered all over the internet,” thus dealing a “serious blow to the criminal justice system,” is premised on the (extremely erroneous) idea that it matters one whit whether criminal defendants get a fair trial--- which, as it so happens, it doesn’t. Your entire argument assumes that fairness and unbiased jurors are some sort of magical prerequisite without which the justice system will grind to a halt; I appreciate your optimism on this point, but it’s entirely misplaced. If we do what you suggest, the gears won’t stop, they’ll just crank on, even if in slightly worse shape than before. I suspect that, to the extent your plan would accomplish anything, it would be merely to degrade what little fairness in procedure we have left. “Civil disobedience” of this kind is not going to stop trials from happening--- it simply won’t, and pretending otherwise won't help anyone. If you think for one minute that major trials (or trials of any kind) are stopped or even mildly impeded because “twelve angry men” can’t be found, you’re living in an entirely different country than the rest of us. Essentially what you are suggesting is that we shit where we eat, not that we walk away from the table entirely, which is problematic to say the least.

If you want to suggest that we fight the power, ok, then do that. Tell us to literally dismantle the system; at least then you’d be saying something that wouldn’t inherently do more harm than good. But what you shouldn’t do is encourage us all to degrade the criminal justice system that will exist no matter what trial protections we erode in our attempt to destroy it. Because it won’t be you or me that pays the price for it--- it will be those poor, black and otherwise disenfranchised people who disproportionately make up the criminal justice system who will suffer the consequences of this kind of “disobedience.” Imagine how this would actually play out: There is a high profile trial of the kind you postulate, for which you make it impossible to find uncontaminated jurors by spreading information via the internet. Do you really think the result would be to not have the trial? That the prosecutor will just pack up and go home, because, aw shucks, he just couldn't find a fair jury to have his trial? No. All you will have done is lower the bar for what we consider an “impartial and fair” proceeding. It’s a mistake to assume that systems of power depend upon the values they espouse. Just because today we give at least lip service to fairness or impartiality doesn’t mean that tomorrow the system will fall apart without those values. It’s particularly true in the context of criminal justice, where the Supreme Court modulates on a regular basis just what exactly criminal defendants are guaranteed, that undermining the standards doesn’t mean they disappear. It just means they’ll become even more useless than they already are. I can't countenance at all your argument that doing this is how we "change the world."

-- DanaDelger - 09 May 2009

It isn't clear to me whether you're arguing that halting the machine of criminal justice by making it impossible to find an impartial jury will be result in positive changes in the criminal justice system or positive changes in internet privacy law (maybe both?). I'm inclined to agree with Dana that your plan won't actually "halt" the machine, and trials will just go on with biased juries in place. (Besides the logistical issues that arise from even implementing the plan.) But your paper made me think about an idea that has come up for me quite a bit this semester - whether it is better to try to reform a system from within, or destroy/halt a system from without and hope that something better arises in its place. It also made me think of Mario Savio's words at one of Berkeley's first major student protests (Dec. 1964): "There is a time when the operation of the machine becomes so odious, makes you so sick at heart, that you can't take part; and you've got to put your bodies upon the gears and upon the wheels, upon the levers, upon all the apparatus and you've got to make it stop. And you've got to indicate to the people who run it, to the people who own it, that unless you're free, the machine will be prevented from working at all."

-- ElizabethDoisy - 09 May 2009

Alex, I think you miss the more obvious implication of the Oscar Grant incident: a networked society allows anyone equal opportunity to disseminate information and be heard. While this has alarming effects for individual privacy, it also exposes government itself to a much greater level of scruitiny than was possible before. If your goal is maintaining a balance of power between the citizen and the state in the face of fundamental technological change, then sousveillance might provide a partial answer without the collateral damage to the justice system that would occur under your proposed form of civil dissobedience

-- AndreiVoinigescu - 11 May 2009

  • I think this is an interesting first draft. I agree with the commentators who believe that the imagined monkey-wrenching is neither a plausible social reform mechanism nor analytically persuasive as an account of the trajectory of change. I tried in my lecture on Part 6 to address the problem presented by pervasive social awareness and indestructible memory for our current version of the "naive jury" concept. [We still do not have a satisfactory way to link directly to portions of audio files on the Web, which constrains me from making good use of classroom audio.] I agree with Dana that you are not actually proposing a means to obstruct the holding of trials, and also that trying to discredit jurors' actual naivete is ethically problematic. What you really mean to do, I think, is challenge the idea of juror naivete, which as I tried to point out is not historically indivisible from the concept of the jury of the vicinage, and was in fact an outgrowth of the decay of localism. We can imagine, and have made use of, jurors of witnesses as well as fully naive juries, and everything in between, through the history of the common law. More adjustments are reasonably forseeable under present circumstances. I think that's where your next draft should be pointed: how, in more nuanced and detailed terms, does a jury system deal with a general lapse of naivete?



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r7 - 05 Jan 2010 - 22:31:28 - IanSullivan
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