Legal shorts: Fight corruption by taking a tip from insects, and no warrant protections for cell-location data
The cure for corruption is... righteousness?
I never thought there were such things as renegade ants, wasps, and bees. But according to Suzanne Sadedin writing in a May 11, 2015, article on Aeon, every now and then one of these highly socialized insects will step out of line, perhaps deciding to lay their own eggs rather than leaving that job to the colony's queen. When this happens, the other members of the colony turn on the rebel and thereby maintain the social order.
Sadedin correlates an insect colony's response to aberrant behavior to corruption in our society. It all comes down to power: When you give one subgroup more power than the rest of the group, that subgroup ultimately abuses that power for its own benefit. Wherever there are police and other authority figures, there's corruption, particularly bribery. Sadedin uses game theory to show why corruption in such situations is inevitable. She demonstrates that people in power naturally feel entitled, and that entitlement allows them to act selfishly, and to justify their actions based on their power.
Sadedin's solution to widespread corruption in our society is for everyone to become a cop: "If we decrease power inequalities, increase punishments and reward punishers, in theory that should trigger a societal transition to righteousness." We're just too darned tolerant, according to Sadedin. If everyone reported every transgression they witness, however minor (such as rolling through a stop sign), peer pressure would ultimately serve as a deterrent.
Imagine a world where people are reporting their neighbors to the "authorities" for every little breach of social etiquette. I think I would settle for more transparency in how police and other government authorities operate. Practically speaking, there will always be a need for some people to be placed in positions of authority over the rest of us.
Of course, there will always be a need for a separate group of people to be given authority to watch the watchers. It's the stuff that happens in the shadows that we need to shine a light on.
Still no warrant requirement for cell-site location records
Police are relying on the Stored Communications Act to access people's cell-phone location history with a simple court order rather than requiring a search warrant. The Electronic Frontier Foundation's Cindy Cohn and Hanni Fakhoury write in a May 8, 2015, article on Gizmodo that the U.S. Court of Appeals for the Eleventh Circuit affirmed this in United States v. Davis. That case involved using the defendant's cell-site history to place him at the scenes of seven robberies.
The Eleventh Circuit ruled that people have no expectation of privacy when they give information to a third party, which in this case is their cell carrier. The third-party doctrine originated in a 1979 Supreme Court decision, Smith v. Maryland, which turned on access to a pen register that recorded the numbers dialed by a stationary telephone. As Cohn and Fakhoury explain, the amount of information collected by cell-site locators dwarfs that available in a 1970s-era pen register.
The authors also point out that the Eleventh Circuit is confusing privacy with secrecy. Just because you disclose personal information to one party doesn't mean you're waiving your right to withhold the information from anyone else. (See Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, Harvard Law Review, V. IV, No. 5, December 1890.) When will these courts wise up?