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.

“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.

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