“Sharing” my thoughts

For many purposes, and for most of us, the digital world has become the same as the physical world. Even though I “write” it, this blog exists because of the internet and technology and not pen and paper. You don’t call or send me a letter in response, you send me a digital “comment.” I “own” the domain in my own name, but I can’t produce this blog without help from third parties.

I contract with WordPress.com to provide the platform. Before I complete this post, I will have written drafts of it. Those drafts “revisions” can be accessed by me. They are stored on WordPress servers–I think the servers belong to WordPress.com but I am not really sure. Since I also “write” using my Google Chromebook, I have taken to savings things (like media I use on the blog) to the Google Cloud. By the way, I trust Google more than I trust the government.

Now, let’s assume that some government official wants to know what my drafts looked like on my earlier controversial post about what women wear to court. On some posts, I go through 30 to 40 drafts. Do I have an expectation of privacy in my drafts even though I have “shared” them with third parties?

Scott Greenfield gets at this important “sharing” issue today. Scott H. Greenfield, The Simpleton’s Guide To The Third Party Doctrine, Simple Justice (May 5, 2014). I urge you to go over there and read what he has written.


PS SHG is a great writer and a no bullshit realist. He would make a super federal trial judge because of those attributes and, as important, because of his real life trial experiences. Mostly, I would love to read what he writes as a judge just to see how his mind would evolve when he was forced to pull the “it is so ordered” trigger.

4 responses

  1. I think there are a couple of interesting points in giving the info to Google vs. the government.

    1. Thanks to the Snowden leaks, we know that the NSA is aggressively targeting Google’s servers, and that it’s highly likely anything given to Google is swept up by the government as well. There’s dispute about exactly how much access the NSA has, but if you want, the Wikipedia article on the PRISM program gives a pretty good overview. For what it’s worth, I don’t trust a word the NSA says about limitations or safeguards.

    2. With modern technology, it is increasingly becoming the case that no two people can communicate without the fact of that communication being visible to a third party – and therefore the government. For example, if you drive to someone else’s house, license plate scanners can automatically tag your vehicle’s location. Likewise, if you carry a smartphone, that can be used to track your location with astonishing accuracy. If you place a phone call, the NSA knows. Same for email. Writing a letter is out too – everyone in the US has a mail cover on them now. Even walking down the street a hd camera with facial recognition software can match you up to your drivers license or passport photo.

  2. RGK: “…how his mind would evolve when he was forced to pull the ‘it is so ordered’ trigger”

    “Let the judge be a mere machine,” Thomas Jefferson intoned. As Gibbon wrote, “the discretion of the judge is the first engine of tyranny.” My real-life court experiences have taught me that judges should have as little discretion as possible. “Discretion” has always meant “I’m going to protect my friends.”

    In one Colorado case, a hedge-fund manager was given a misdemeanor in a vehicular assault case after he fled the scene — for the rest of us, that’s a felony — because he was a hedge-fund manager. Another kid got probation after killing four while driving as drunk as a lord — he blew a .24 — because his parents were filthy-rich. Discretion … which the little guy never gets the benefit of.

    I agree with Ronald Dworkin: There is one right answer to pretty much every legal question. As one who has been on the business end of it, what I cannot abide is unequal justice under law. As I see it, one’s mind should not evolve based on the position one occupies.

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