Posner pisses off plenty of people on privacy

Entitled “On Privacy, Free Speech, & Related Matters — Richard Posner vs David Cole & Others,” Ronald K.L. Collins has this post at “Concurring Opinions.” As I frequently do, I tip my hat to Howard Bashman at How Appealing.

What is most interesting to me about this piece on Posner is not the judge’s provocative statements suggesting that privacy is far less important than national security. What is really interesting to me is the shocked and vituperative reaction he received as a result. See, e.g., here (Nick Gillespie) and, for an especially tough piece, here (Glenn Greenwald). Posner is not much of a romantic when it comes to privacy and free speech, and that apparently makes some folks froth at the mouth.

Image credit: disinfo.com

Image credit: disinfo.com

I don’t agree with a lot of what Judge Posner has to say on privacy and free speech. That said, perhaps I have signed too many search warrants for electronic data and Title III interception orders for wiretaps and bugs, but I pretty much agree with him on one point. We should not fear the government scooping up too much information in pursuit of crime or in furtherance of the national security. On the contrary, we should fear that a risk averse government will seek to scoop up too little.* However, reasonable people can certainly disagree, and that value judgment is not as simple as Judge Posner seemingly thinks.

As an aside, I bet Posner and I see the world in the same, almost paranoid, terms and that accounts for our agreement on this point. Why that paranoia does not extend to the government is a question for which I don’t have much of an answer. For myself, all I can say is that I try to be a good German.

Anyway, Professor Collins once again does a wonderful job helping us understand the brilliant Judge Posner and, this time, the judge’s views on privacy and free speech. I encourage you to read this most recent piece.


*You would be fascinated to know about the government’s technological capacity to listen in on anyone anywhere. You would also be impressed (and maybe depressed) by how hard it is for the government to get the judicial authority to do so. Having said that, I have had only indirect involvement with national security matters as compared with far more experience in criminal cases. In short, I am only slightly better informed on government snooping for national security purposes than the man or woman on the street.

23 responses

  1. Regarding your footnote: I am fascinated with the scant bits of insight the public has about our government’s ability to look up our skirts. The technological capabilities are exhilarating, and it would be fair to observe that very few people conduct their lives in a way that would suggest they value their privacy highly — indeed, most people freely provide a massive trove of personal information to anyone who requests it in return for access to Facebook or another online diversion. But of course the populace’s disregard for their rights is no basis for the erosion of the same.

    While my insight about the judicial process is clearly far inferior to yours, my own conversations with a handful of judges who have served the FISC (and were ardent supporters of its goals and its process) leads me to question the difficulty government attorneys face when applying to it. My anecdotal conversations about the issue have uncovered no judge who has ever refused an application for a FISA authorization (though at least one judge indicated that he had limited the scope of such applications before granting them).

    Of course, it is virtually impossible to know much more than superficial statistics and anecdotes about the FISC. But a process that imposes no adversary to the government during evidence collection, and later allows the same government that a defendant cannot see such evidence against him (much less know the manner in which it was collected) due to unnamed National Security interests is hardly one that forces the government to fight at a disadvantage.

    Though it is likely axiomatic for both you and your readers, it may be worth saying: the individual civil liberties listed as part of our Constitution are not enumerated so that they may be observed when it is convenient, but to remind us of their importance when it is not.

  2. I think Greenwald has a point. I think Posner has a point, too, but the “if you don’t do anything wrong you don’t have anything to worry about” rationale is more than a little unfortunate.

    The problem with Greenwald’s take, and probably Snowden’s too, is…what are you going to do about it? What. exactly, are you proposing?

    Fantastic surveillance capabilities are a fact. You can’t wish them away:


    Does it enable the government to decide who they want to prosecute, search the vast technological archives after the fact and get their conviction largely based on character assassination? Yes. And Posner’s assertion that they couldn’t do that to him is shockingly naive.

    To some extent I think we are left with the remedy we have always been left with, and with fair legal proceedings and a justice system with integrity government skullduggery of that kind wouldn’t succeed and would get the perpetrators into trouble, not the victims.

    The problem, of course, is that we don’t have fair legal proceedings or a justice system with any integrity. At least not very much. And that’s why people are afraid of a technological boogeyman they can’t do anything about in the first place, and why Greenwald and Snowden have resonated even though they don’t propose any solutions at all.

  3. One thing about the government’s actions on privacy that deeply troubles me is the appalling extent to which it lies about them. Not just to us plebeians in the cheap seats without security clearances, but in all sorts of official ways. The government’s conduct in snookering the Supreme Court in the Clapper v. Amnesty International case for example, as well as the repeated frauds upon the court described in Judge Bates’ 2011 FISC ruling on NSA surveillance are both quite disturbing.

    So I want to know: what else does the government have to hide?

  4. I was working on a response to Posner’s nonsense when the absinthe-minded perfesser chimed in. I cannot top that. Maybe I can just recommend to him a couple of my favorite drinks made with absinthe, like the monkey gland….

    An emphatic yes to cameras in judicial chambers, with live feeds 24/7. Bravo.

    And Judge Kopf, your fawning over Posner is unseemly. Just because he pisses people off doesn’t make him right.

    Here’s the essence in a few words:

    “All human beings have three lives: public, private, and secret.”
    ― Gabriel Garcí­a Márquez

  5. As a timid soul, I share the Perfesser’s concern about conduct being altered by fear of the listening government as a shaper of conduct. The 3rd Amendment as the CJ pointed out in his confirmation testimony reflects precisely that fear, and arguably what the government can not do with troops it can now do with electronics. A lot of us who have avoided crime have not been able to avoid embarrassing conduct, and a lot of J Edgar Hoover’s power, in peace and war, came from his collecting nasty gossip. The government lied to the judge in the Rosenberg case, and Hoover tried to suppress the role one of the German saboteurs play in their capture and allowed him to be sentenced to death, though FDR found out and commuted the sentence along with another fellows for cover, and during the 60s the American version of Titus Oats was turned lose among the left as he had been among domestic communists.. Even listening to lawyer client conversations was not regard as improper The other problem once you move to crime is that not all crime is the same. Do we realy want the regulatory and revenue police to have .FISC court powers and information.
    As an academic ,however, the Perfesser ought to know that being shrunk is mark of honor in the academy.
    With regard to your not fearing the government
    judge, you do spend a lot of time around nice folks from law enforcement, I spent a period representing gamblers and found them much nicer folks than the strike force that pursued themrepentinglawyer

  6. The Perfesser and Richard could have thrown in the 3rd Amendment, which was aimed at keeping the government from using troops to intimidate. Modern electric devices can play the same role, shaping private life out of fear. Have we so soon forgotten J Edgar Hoover and his records and his Titus Oates type agents in Communist and then radical groups encouraging the crimes they were there to stop.
    The transfer of his skepticism about privacy in the private sector to government is not well supported by the arguments Posner makes, and do not do anything bad is rather silly, when it becomes do not do anything stupid or embarrassing or anything that can be used against you.
    With regard to crime, regulatory crime and revenue crime for example seem not to be appropriate for FISC type powers.

  7. Absent a workable understanding of the history about how our constitutional law originated (e.g. Why Trial by Jury?) and some other relevant issues of jurisprudence, we will default to the particular cultural trance (out of several available) that has caged us (Choose Your Trances Carefully).

    As politics seeps more and more into our jurisprudence, what Dr. Lakoff intimates about our cognition becomes instructive: “It’s no accident that our political beliefs are structured by our idealizations of the family. Our earliest experience with being governed is in our families. Our parents “govern” us: They protect us, tell us what we can and cannot do, make sure we have enough money and supplies, educate us, and have us do our part in running the house.

    So it is not at all surprising that many nations are metaphorically seen in terms of families: Mother Russia, Mother India, the Fatherland. In America, we have founding fathers, Daughters of the American Revolution, Uncle Sam, and we send our collective sons and daughters to war. In George Orwell’s dystopian novel 1984, the voice of the totalitarian state was called Big Brother.

    As George Lakoff discussed at length in his 1996 book, Moral Politics, this metaphorical understanding of the nation-as-family directly informs our political worldview. Directly, but not consciously. As with other aspects of framing, the use of this metaphor lies below the level of consciousness.” (The Nation as Family … metaphor)

    In our evolution from left to right, we are switching from the nurturing parent model to the strict father model.

  8. Richard,

    You write: “And Judge Kopf, your fawning over Posner is unseemly.” For what it is worth, I have poked Posner before. See, for example, here.

    All the best.


  9. Does anyone have faith in our justice system any more? (Excepting those who administer it and sycophantic law clerks, oc.) One must surrender in the face of the obvious.

    Patrick Henry warned us to guard liberty with jealous attention, and to “suspect everyone who approaches that jewel.” William Pitt added that necessity “is the argument of tyrants.” If four millenia of history teach us nothing else, it is that no man can be trusted with power.

    Posner comes off like a Fox News pundit, as opposed to the normally brilliant man we have come to know and love.

  10. According to Elbridge Gerry, the trial by jury developed because judges can be counted on to be corrupt, deciding cases in accordance with their personal self- interest. When judges served at the pleasure of the Crown, they would never do anything to incur the Crown’s wrath.

    As a class, today’s judges are every bit as craven as their predecessors.

  11. “We should not fear the government scooping up too much information in pursuit of crime or in furtherance of the national security.”

    Let me join others who have pointed out the excesses and abuse of power by J. Edgar Hoover, as a potent counterexample.

  12. It is a weird experience to go to a gathering at a private home, even if Jane Fonda was attending during Vietnam War, and discover two FBI agents pretending to be college professors. Shoe shines were dead give away and I knew one from a case. Also had pictures taken as we walked in. Nice guys, we played cards while Jane spoke.

  13. Peter H.,

    To be clear, if government agents lie or mislead to get search warrants or interception orders they should go to prison whether or not national security is involved. The government should always cut square corners, and that is especially true for ex parte matters.

    In my experience, particularly with Title III interception applications, government’s agents and lawyers are careful not to lie or mislead. By the way, in this District no agent appears seeking a Title III order (or even a search warrant) without an Assistant United States Attorney who has carefully reviewed the submission appearing with the agent. With Title III interception requests, the applications cannot even get to a judge without approval from a senior DOJ official at Main Justice after careful review.

    Now, as I said in my post, my experience with national security matters is very limited. I can only speak about my experience with electronic surveillance in very serious criminal matters.

    All the best.


  14. On the front of lying in warrant applications, you might be interested to read up on United States v. Phua in the District of Nevada, which is going on right now.

    FBI agents were investigating Paul Phua, a high stakes poker player, and a number of family members on suspicion of running an illegal sports book. In doing so, according to defense counsel, they engaged in a ruse to trick their way into Phua’s villa at Caesar’s Palace in Las Vegas. The ruse was to turn off their internet connection, and pose as hotel employees sent to fix it. They’d then search around and once they got the goods (which was just an agent’s viewing a computer screen showing some sports odds), make a call to turn the net back on.

    Then they filed a warrant application claiming a consent search, and raided the villa with the warrant.

    Tom Goldstein (of SCOTUSBlog) is pro hac vice with defense counsel and wrote a really engaging and troubling motion to suppress brief.

    Click to access gov.uscourts.nvd.102542.229.0.pdf

    Today was the first day of a hearing on the warrant application. Here’s a newspaper write up of the hearing.


    Quoth the FBI agent: “I didn’t think it was important to provide all the details.”

  15. Peter H.,

    Thanks very much. I am glad to review these materials.

    Without taking a position on this matter, I note the following:

    “Pham testified that after an assistant U.S. attorney in Las Vegas didn’t immediately endorse the idea of FBI and Nevada Gaming Control Board agents posing as computer technicians, he didn’t ask her again.” Good for the AUSA.

    One other note:

    When I take warrant applications, I always ask two questions after I first formally swear the agent under penalty of perjury: (1) “Are the statements contained in the affidavit true and correct to the best of your knowledge, information or belief?” and “Do you have any reason to doubt the accuracy of any of the statements contained therein?”. Since I will never grant a warrant without an AUSA being present, and I always ask these questions (including service as an MJ) when the agent is under oath, I feel reasonably certain that few FBI agents would have omitted the information allegedly omitted in the Las Vegas case.

    All the best.


  16. Has anyone noticed what Judge Posner thinks of Katz v. United States, 389 U.S. 347 (1967) and Arizona v. Gant, 556 U.S. 332 (2009) in terms of exceptions to the “warrantless searches are per se unreasonable” (therefore exceptions are to be quite narrowly tailored)?

  17. Judge, the first thing I agree with you about is that reasonable, civil people can disagree on this subject and still remain friends.

    The longer on the state trial bench I stay, (18 years in April) the more I am disturbed by the government at all levels disregarding (in my view), stretching, and manipulating the 4th Amendment. Our local police agencies apparently have a policy of not obtaining a consent to search form from an automobile driver, for example, when a routine stop takes place. Then I and the jury are put in the same old position,the police office says “yes, the driver gave me consent” and the driver says “No I didn’t”. If it happened because the officer ran out of forms, fine but this is department police. It is the same policy that encourages that suspects’ statements not be recorded in any form. Then, the officer gets to recount what he says the defendant said. The defendant, usually a felon will not testify because of his felony status and the officers word carries the day. I have more than politely suggest a change but it has never happened.

    I believe that many people now actually fear the government. For example, I tried a simple possession of Marihuana case a few weeks ago. In voir dire I asked the jury: “How many of you would favor the legalization of small amounts of Marihuana for personal use?” Of 30 jurors only two said yes. 15 years ago one half would have said yes. When I changed the question to “medical Marihuana” only two people said no. That type question and answer has been constant my drug cases and yet the jury acquitted the defendant, really in a nullification verdict. People/jurors are concerned about “the government” knowing too much about them, rightly or wrongly.

    Or a glaring example is the new Boogie Man drug, Spice. Before it was made illegal in the state, the news media had created a panic that every kid was buying Spice, smoking it and going crazy. Thus, the governor issued an “executive order” commanding all law enforcement officers to seize Spice without delay from privately owned stores and hold until further notice. There was no definition at to what Spice even was. 6 months later it or something was made illegal but the 5th Amendment was completely ignored.So much for taking property without due process of law.

    Lastly, considering the Writs of Assistance and how that help start the Revolution we should be especially sensitive to getting a warrant and having it done right. I have signed search warrants at home in the middle of the night, on the shooting range, once I was out on my old boat and came to shore to sign one. So generally we judges don’t slow things down.

    But I have seen the abuses where home were vandalized looking for objects not mentioned in the warrant (which was the true goal of the warrant) which then I later had to suppress. But at least it is out in the open for all to see.

    I am not being critical of you of Judge Posner at all, I respect both of you just for your willingness to write about subjects. Like both of you, 18 years of rape, murder, and mayhem has made me a bit paranoid too.

    Privacy is such a uniquely American idea and I believe it to be one of those inalienable rights that we should protect to the fullest, even though the citizens don’t seem to appreciate the erosion of it and in fact often assist with their own loss of privacy.

    Had we strictly enforced our own immigration laws before 9-11, the terrorist cause that disaster would never have been in this country to commit those crimes.

    For what it is worth, my view from the bench n a state trial court.

  18. Pingback: The Glossy Untruth | Simple Justice

  19. :
    “To be clear, if government agents lie or mislead to get search warrants or interception orders they should go to prison whether or not national security is involved.”

    Indeed. Any how many examples of such government agents being sent to prison can you enumerate? How many have you sent to prison? How many have other judges? With respect, such a statement makes it hard to you seriously.

  20. Judge,

    I apologize for the late reply. For some reason, your comment escaped my notice.

    I wonder whether you see far more “real crime” and “real cops” than I do. While I get a hell of a lot of drug cases, gun cases, and the like, my guess is that you see more cop/citizen interaction. If that is so, perhaps your views are founded upon better data than the “facts” I see from the sanitized vantage point in which I am privilged to work. Wouldn’t be the first time a federal judge had his head up his ass!

    Thanks for writing. I always appreciate your insights. All the best.


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