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Read the rules in the OP before posting, please.In order to ensure that this thread continues to meet TL standards and follows the proper guidelines, we will be enforcing the rules in the OP more strictly. Be sure to give them a re-read to refresh your memory! The vast majority of you are contributing in a healthy way, keep it up! NOTE: When providing a source, explain why you feel it is relevant and what purpose it adds to the discussion if it's not obvious. Also take note that unsubstantiated tweets/posts meant only to rekindle old arguments can result in a mod action. |
The Trump-aligned lawyer who went public with this Mueller search thing asked for legislative change for FUTURE presidential transitions, and that was the best he had.
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On December 19 2017 15:05 mozoku wrote:Show nested quote +On December 19 2017 06:59 Jockmcplop wrote:On December 19 2017 06:55 Sermokala wrote:
Yeah but how many times has anyone ever mentioned Indonesia as a world player despite being OG OPEC and top 5 population? If we're talking about US foreign policy Indonesia is literally the worst thing that America has ever done. They supported a genocide and then raped the country of all its resources and enslaved its population. But it was done in a kind of capitalistic way so the history books ignore it. I looked this up out of curiosity and this looks to be grossly misleading from the mainstream sources I saw. Indonesia in the early 1960s was a poor and unstable country that leaned communist. Like every other communist nation, it was an economic failure. People were starving en masse and inflation was approaching 4 digits. The ruling community leadership (elected democratically, it seems, to be fair) turned down food aid from the US. In 1965, there was a coup and the the details of exactly what conspiracies were going on didn't survive history very well. Some say it was an internal military affair, some say it it was a conspiracy on the communist party's part, and one academic thinks the CIA played a role. Regardless, a right-wing general came out as a military junta that ended up ruling for the next 35 years. The US provided more food aid in the coming famines. As often happens in coups, the winner purged the losers. This is all true. But nowhere did I read that the US "supported a genocide." The only "support" was that the US and Indonesia were both against communism and the US didn't make a priority of condemning the purges. While not an A+ grade, I don't know what the fuck you're talking about when you're claiming the US "supported" them as if they had an active hand. This all occurred during the height of the Cold War and the Vietnam War. The US wasn't really in a position to be actively antagonizing countries that were aligned with them against communism. I could understand if you were arguing the US could have done more, but you're making genocide claims here. What the hell? On to the "enslavement and resource rape." The newly instated military junta alternated between two economic philosophies during his reign: one was a liberal Western philosophy championed by a group of US-educated (Berkeley) Indonesian economists, and one was a nationalist philosophy. The main point of contention was national resources: the liberal Indonesian economy wanted to privatize national resources and the nationalists didn't. In short, Indonesia's economy grew rapidly under the liberal economists and stagnated under the nationalists. The Indonesian government, taking the advice of the US-educated Indonesian economists when they were in favor, voluntarily agreed to sell some natural resources US corporations. As far as I'm aware, there was no foul play involved. I have no doubt that the working conditions, as they usually are in developing countries, were quite horrible by first world standards. That said, after Googling around for 10-15 min, I can't really find anything more than what I said above. There is some "workers.org" essay that makes a lot of conspiracy-like allegations that echo what you said, but I can't find anything done by anyone that seems credible supporting it. It's certainly not mentioned on the Wikipedia page. Here's another angle we can look at though: How do the Indonesians view the US in light of the history between the two nations? In 2015, 62% of Indonesians viewed the US favorably, according to Pew. In 2014, 36% view US influence positively and 47% view US influence negatively according to BBC World Services. Not great, but hardly what I'd expect if the US were truly imperialist genociders/enslavers over there. So the mainstream view hardly always matches your genocide, enslavement, and exploitation narrative.
Its early morning here and I gotta go to work but I'm leaving this here just to start with and we can carry this on later because it might be educational for you:
https://www.theatlantic.com/international/archive/2017/10/the-indonesia-documents-and-the-us-agenda/543534/
A trove of newly declassified diplomatic cables reveals a surprising degree of American involvement in a brutal anti-communist purge in Indonesia half-a-century ago.
In Indonesia in October 1965, Suharto, a powerful Indonesian military leader, accused the Indonesian Communist Party (PKI) of organizing a brutal coup attempt, following the kidnapping and murder of six high-ranking army officers. Over the months that followed, he oversaw the systematic extermination of up to a million Indonesians for affiliation with the party, or simply for being accused of harboring leftist sympathies. He then took power and ruled as dictator, with U.S. support, until 1998.
This week, the non-profit National Security Archive, along with the National Declassification Center, published a batch of U.S. diplomatic cables covering that dark period. While the newly declassified documents further illustrated the horror of Indonesia’s 1965 mass murder, they also confirmed that U.S. authorities backed Suharto’s purge. Perhaps even more striking: As the documents show, U.S. officials knew most of his victims were entirely innocent. U.S. embassy officials even received updates on the executions and offered help to suppress media coverage. While crucial documents that could provide insight into U.S. and Indonesian activities at the time are still lacking, the broad outlines of the atrocity and America’s role are there for anyone who cares to look them up.
What is often sorely lacking, however, is an appreciation of the importance of the event or how fundamental the violence was to achieving U.S. goals at the time. Compared with the Vietnam War or a subsequent series of right-wing coups in Latin America, Indonesia 1965 is virtually unknown. But considering the U.S. government’s foreign-policy goals at the time—halting the spread of communism and bringing countries around the world into its sphere of influence—Suharto’s bloody purge was a huge win. The decimation of the PKI and Suharto's rise to power constituted a major turning point in the Cold War
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Ehh, that's still not that close to what you said and the article is definitely trying to spin a narrative.
For example, it claims the PKI was openly working within the system and unarmed. And that Suharto "blamed" the coup on a PKI plot. In reality, the PKI was in power to begin with and lost power when a preemptive assassination of some alleged leaders of a suspected coup went badly wrong. That hardly rings of the "innocent victim portrayal in article. Not that that justifies anything on its own.
Here's a recent NYT article that covers the same cables, but with less innuendo.
The US involvement is limited to handing over some lists of known communists to be purged and aiding in media suppression. Not a shining star for the US, but not really an outlier by the standards of the time. I'm less sympathetic to some geopolitics-based justification for immorality in 2017, but the Cold War was a time when there were legitimate survival motives in play.
It's hardly comparable to, say, what the British Empire did--which is the impression you give when you accuse the US of supporting genocide, mass enslavement, and resource exploitation. For one, the US was primarily motivated by self-defense in the Cold War, rather than profit. Second, no enslavement actually happened. Third, Indonesia (voluntarily) welcomed US corporations because it felt the investment would simulate the economy--which it most certainly did. The US didn't show up with an army and enslave/massacre the locals for profit.
Moreover, it's much easier to say the US should have acted more in alignment with its stated principles on 2017 than it was in 1967. Given the uncertainty of the period, I can sympathize with US leaders at the time compromising on principles some to err on the side of keeping its citizens safe. I would expect Indonesians to do the same to Americans if the situation were reversed, and I wouldn't think any less of them for it.
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the US was primarily motivated by self-defense in the Cold War, rather than profit.
Pretty sure those were one in the same.
Anyway here's an interesting thread on data from a guy at Pew
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On December 19 2017 14:27 xDaunt wrote:To follow up on the discussion regarding Mueller's email seizures: Show nested quote +According to published reports, Special Counsel Robert Mueller engaged in a mass seizure of all emails of the Trump transition team without even a warrant or a subpoena. In my opinion, a mass seizure – as is alleged here against Mueller – cannot conform to either Fourth Amendment standards or attorney-client privilege protections. The questions boils down to this: was there a reason for the individuals communicating by email, including with their lawyers, to believe their communications were private or privileged? Or, did the individuals forever waive or “implicitly consent” to any future search or seizure of their emails?
The Supreme Court in 2010 “counsels caution” before too soon defining “the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices” until popular use of the technology used was better developed socially. (City of Ontario, Cal. V. Quon, 560 U.S. 746 (2010). In other words, do most people expect privacy in that use of technology to communicate, or do they assume it is equivalent to talking in an open office where anyone from the public can walk by? The court made clear a government search was not reasonable if not “justified at its inception” or “excessively intrusive” or “not reasonably related to the objectives of the search.”
Put simply, the use of a government server, like the use of an employer’s server, does not control the privilege or privacy analysis. Instead, courts typically employ a four-factor test, that tends to be very fact-intensive, email-specific, and individual-specific. (In re Reserve Fund Securities and Derivative Litigation, 275 F.R.D. 154 (S.D.N.Y. 2011). First, whether the government or company maintains a policy banning personal use. Second, whether the government or employer monitors the use of the email. Third, whether third parties have a right of access to the emails beyond technical audits and maintenance. Fourth, whether the government or employer notifies the individual of the limits on privacy in the emails, whether the individual was aware of those policies, the use of those policies, and the monitoring of those policies. It boils down to whether a person in the individual’s shoes would have had no reasonable expectation of privacy in their email communications.
A fifth factor is relevant in the Fourth Amendment context: whether the government gave an individual notice and the individual had knowledge of the right to refuse to give consent to the future search of their emails. Courts held individuals who agreed, as a condition of employment to “any future searches” did not waive their right against such searches because the waiver failed to give them the “right to refuse to give consent to the future search.” For the government to claim implied consent or waiver, “requires clear notice that one’s conduct may result in a search being conducted of areas which the person has been warned are subject to search,” and such notice must ensure an individual “had knowledge of the right to refuse to give consent.” (Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F.Supp.2d 548 (S.D.N.Y. 2008). Hence, a broad waiver was found inadequate to permit a search. (Anobile v. Pellegrino, 303 F.3d 107, 124-25 (2d. Cir. 2002). The Supreme Court made it clear the question usually “must be addressed on a case-by-case basis” and rarely subject to blanket waivers of Fourth Amendment liberties. (City of Ontario, Cal. V. Quon, 560 U.S. 746 (2010).) As the court reiterated, “individuals do not lose Fourth Amendment rights” merely because they use government-provided servers, offices, or equipment. (O’Connor v. Ortega, 480 U.S. 709 (1987).
Courts held that an employee has a reasonably expectation of privacy in the contents of his computer even when given specific notice the computers could not be used for personal purposes and the individual had authorized disclosure for technical and maintenance audits. Leventhal v. Knapek, 266 F.3d 64, 74 (2d. Cir. 2001). Attorney-client privilege is broader. As courts have held, emails between government employees remained privileged even though sent over government email servers. (In re County of Erie, 473 F.3d 413 (2d Cir. 2007). Courts held an ex-employee could assert attorney-client privilege against use of such emails by his company even though emails were located on employer’s computer and employer gave employee notice any documents stored on computer not protected. (Curto v. Medical World Communications (E.D. N.Y. 2006).
The Mueller search runs afoul of many of these established court precedents and Fourth Amendment privacy and privilege principles. First, it appears Mueller searched and seized every email, without any kind of categorical or keyword search. This is exactly the kind of search the Supreme Court made clear was not allowed under the Fourth Amendment. This means Mueller can only prevail if he didn’t seize a single email of a single individual that the individual could have any expectation of either personal privacy or attorney client privilege in.
The primary excuses proffered so far for the broad seizure is the faulty assumption the use of a government server waived all privacy and all privilege of every email ever made over that server. As identified above, that has never been the law. The security and efficacy of government-owned servers for transition employees are not intended as a trap for the unwary to forever forfeit their privacy and privilege rights in their communications. Indeed, doing so would undermine use of such communications, and invite Hillary Clinton type bathroom closet email servers for everybody.
Mueller’s problem here is these were not even government employee emails; they were the emails of private individuals stored temporarily on a government server, and publicly declared to be “private materials” as a matter of custom, practice and the public policy of the National Archives. As Professor Jonathan Turley identifies, the National Archives recognize transition email records “are not federal or presidential records, but considered private materials.”
The only “notice” evidence otherwise given publicly is that an agreement between the GSA and the transition team identified the possibility of technical and maintenance audits, with some claiming this as a “waiver” of all privacy and privilege rights in the emails forever. Here again, the law does not support such a claim; even cases with much more specific notices and much less invasive searches, found privacy and privilege objections persisted. So far, a striking lack of arguments and evidence has been mounted for claiming every single email lacked any privacy or privilege.
It appears to me, Mueller deliberately skipped the court, the grand jury, and the government-imposed limits on investigative inquiries into worker conduct under Supreme Court precedent; he might have done so because he wanted a tactical edge, and was walling to ignore the Fourth Amendment restrictions on him to do so. Mueller may come to regret his choice. Source. The basic takeaway is that any notice or acknowledgement that the Trump team may have signed regarding its privacy rights is very far from being dispositive of the propriety of what Mueller did.
Answer me this.
Has the Trump team lodged a formal complaint with the investigation or any part of the judiciary?
If not, why?
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On December 19 2017 09:16 mozoku wrote:Show nested quote +On December 19 2017 08:55 xDaunt wrote:On December 19 2017 08:52 Plansix wrote:On December 19 2017 08:49 xDaunt wrote:On December 19 2017 08:48 Plansix wrote:On December 19 2017 08:43 xDaunt wrote:On December 19 2017 08:20 Plansix wrote:On December 19 2017 08:13 xDaunt wrote:On December 19 2017 08:06 Nebuchad wrote:On December 19 2017 07:40 xDaunt wrote:
[quote]
Why do you think that I won't engage on a discussion of my premises? For example, feel free to argue why I am incorrect in stating that Israel and Palestine will never coexist peacefully. It's a baseless claim. This post is the perfect example of the general intellectual bankruptcy of most of the people who disagree with me. I gave my reasons previously for why Israel and Palestine will never peacefully coexist (namely by pointing out that the history shows as such). Nebuchad says he disagrees with me. I invited to explain and why, and he merely reiterates that he disagrees with me (by stating that my claim is baseless). What a fucking joke. This is like saying France and England will never be allies in a war in the 1890s. History would support your claim, but that doesn’t mean shit. Knowing history doesn't let us predict the future. So you're saying that we should act on the basis of baseless speculation instead of known facts? C'mon now. If you have good reasons for why you think that peaceful coexistence between Israel and Palestine is reasonably possible within a reasonable timeframe, now's the time to state them. Please explain what a reasonable time frame is? I dunno, I'm pretty flexible on that one. How long do you need? Its your standard of proof, so you got that one. I'm giving you the opportunity to define it! You should be jumping all over it. Are you forgetting you're talking to leftists? Consistency is contradictory to their worldview, which is one derived nearly entirely from emotion. They rarely, if ever, make constructive arguments because there is none to be consistently made from a purely emotionally derived worldview. Consequently, well-defined terms have no argumentative utility and serve only as vulnerabilities from which others can leverage to expose their inconsistency/hypocrisy. See "racist", "nationalism", and the rest of the long list.
The left has that reputation but I think it reversed in the past couple decades.
On the right, science discussions are dominated by what is felt to be true. Economic discourse sticks to the old thought experiments of the 70's because they feel right.
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Apparently Track Palin, Sarah Palin's son, "was arrested on assault and burglary charges after he repeatedly hit his father, Todd Palin, at the family home in Wasilla on Saturday, charging documents say. The charges mark his second domestic-violence arrest in not quite two years." https://www.adn.com/alaska-news/mat-su/2017/12/18/track-palin-arrested-for-assaulting-his-father-todd-palin/
"The incident happened at the Palin home in Wasilla, Alaska, where Track Palin bloodied his father, Todd, in a dispute over a truck, according to court records." https://www.google.com/amp/s/amp.cnn.com/cnn/2017/12/18/politics/track-palin-arrested-domestic-violence/index.html
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On December 19 2017 14:30 Plansix wrote:
I haven't seen a single attorney worth talking about say that claim is creditable. And I don't know why Trumps camp keeps attacking the investigation if they want it to exonerate them.
But have no doubt, that will generate lots of Fox News headlines and fuel for some house republicans. Democrats did the same thing to Ken Starr. Republicans whined about water gate dragging on.
they know it won't exonerate him; so the standard tactic is to attack its credibility instead.
or at least that's trump's tactic; and the others follow his lead/gameplan.
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On December 19 2017 19:05 Gorsameth wrote:Show nested quote +On December 19 2017 14:27 xDaunt wrote:To follow up on the discussion regarding Mueller's email seizures: According to published reports, Special Counsel Robert Mueller engaged in a mass seizure of all emails of the Trump transition team without even a warrant or a subpoena. In my opinion, a mass seizure – as is alleged here against Mueller – cannot conform to either Fourth Amendment standards or attorney-client privilege protections. The questions boils down to this: was there a reason for the individuals communicating by email, including with their lawyers, to believe their communications were private or privileged? Or, did the individuals forever waive or “implicitly consent” to any future search or seizure of their emails?
The Supreme Court in 2010 “counsels caution” before too soon defining “the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices” until popular use of the technology used was better developed socially. (City of Ontario, Cal. V. Quon, 560 U.S. 746 (2010). In other words, do most people expect privacy in that use of technology to communicate, or do they assume it is equivalent to talking in an open office where anyone from the public can walk by? The court made clear a government search was not reasonable if not “justified at its inception” or “excessively intrusive” or “not reasonably related to the objectives of the search.”
Put simply, the use of a government server, like the use of an employer’s server, does not control the privilege or privacy analysis. Instead, courts typically employ a four-factor test, that tends to be very fact-intensive, email-specific, and individual-specific. (In re Reserve Fund Securities and Derivative Litigation, 275 F.R.D. 154 (S.D.N.Y. 2011). First, whether the government or company maintains a policy banning personal use. Second, whether the government or employer monitors the use of the email. Third, whether third parties have a right of access to the emails beyond technical audits and maintenance. Fourth, whether the government or employer notifies the individual of the limits on privacy in the emails, whether the individual was aware of those policies, the use of those policies, and the monitoring of those policies. It boils down to whether a person in the individual’s shoes would have had no reasonable expectation of privacy in their email communications.
A fifth factor is relevant in the Fourth Amendment context: whether the government gave an individual notice and the individual had knowledge of the right to refuse to give consent to the future search of their emails. Courts held individuals who agreed, as a condition of employment to “any future searches” did not waive their right against such searches because the waiver failed to give them the “right to refuse to give consent to the future search.” For the government to claim implied consent or waiver, “requires clear notice that one’s conduct may result in a search being conducted of areas which the person has been warned are subject to search,” and such notice must ensure an individual “had knowledge of the right to refuse to give consent.” (Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F.Supp.2d 548 (S.D.N.Y. 2008). Hence, a broad waiver was found inadequate to permit a search. (Anobile v. Pellegrino, 303 F.3d 107, 124-25 (2d. Cir. 2002). The Supreme Court made it clear the question usually “must be addressed on a case-by-case basis” and rarely subject to blanket waivers of Fourth Amendment liberties. (City of Ontario, Cal. V. Quon, 560 U.S. 746 (2010).) As the court reiterated, “individuals do not lose Fourth Amendment rights” merely because they use government-provided servers, offices, or equipment. (O’Connor v. Ortega, 480 U.S. 709 (1987).
Courts held that an employee has a reasonably expectation of privacy in the contents of his computer even when given specific notice the computers could not be used for personal purposes and the individual had authorized disclosure for technical and maintenance audits. Leventhal v. Knapek, 266 F.3d 64, 74 (2d. Cir. 2001). Attorney-client privilege is broader. As courts have held, emails between government employees remained privileged even though sent over government email servers. (In re County of Erie, 473 F.3d 413 (2d Cir. 2007). Courts held an ex-employee could assert attorney-client privilege against use of such emails by his company even though emails were located on employer’s computer and employer gave employee notice any documents stored on computer not protected. (Curto v. Medical World Communications (E.D. N.Y. 2006).
The Mueller search runs afoul of many of these established court precedents and Fourth Amendment privacy and privilege principles. First, it appears Mueller searched and seized every email, without any kind of categorical or keyword search. This is exactly the kind of search the Supreme Court made clear was not allowed under the Fourth Amendment. This means Mueller can only prevail if he didn’t seize a single email of a single individual that the individual could have any expectation of either personal privacy or attorney client privilege in.
The primary excuses proffered so far for the broad seizure is the faulty assumption the use of a government server waived all privacy and all privilege of every email ever made over that server. As identified above, that has never been the law. The security and efficacy of government-owned servers for transition employees are not intended as a trap for the unwary to forever forfeit their privacy and privilege rights in their communications. Indeed, doing so would undermine use of such communications, and invite Hillary Clinton type bathroom closet email servers for everybody.
Mueller’s problem here is these were not even government employee emails; they were the emails of private individuals stored temporarily on a government server, and publicly declared to be “private materials” as a matter of custom, practice and the public policy of the National Archives. As Professor Jonathan Turley identifies, the National Archives recognize transition email records “are not federal or presidential records, but considered private materials.”
The only “notice” evidence otherwise given publicly is that an agreement between the GSA and the transition team identified the possibility of technical and maintenance audits, with some claiming this as a “waiver” of all privacy and privilege rights in the emails forever. Here again, the law does not support such a claim; even cases with much more specific notices and much less invasive searches, found privacy and privilege objections persisted. So far, a striking lack of arguments and evidence has been mounted for claiming every single email lacked any privacy or privilege.
It appears to me, Mueller deliberately skipped the court, the grand jury, and the government-imposed limits on investigative inquiries into worker conduct under Supreme Court precedent; he might have done so because he wanted a tactical edge, and was walling to ignore the Fourth Amendment restrictions on him to do so. Mueller may come to regret his choice. Source. The basic takeaway is that any notice or acknowledgement that the Trump team may have signed regarding its privacy rights is very far from being dispositive of the propriety of what Mueller did. Answer me this. Has the Trump team lodged a formal complaint with the investigation or any part of the judiciary? If not, why?
They haven't had the opportunity. There's been no proceedings in which to lodge one yet.
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On December 19 2017 22:10 xDaunt wrote:Show nested quote +On December 19 2017 19:05 Gorsameth wrote:On December 19 2017 14:27 xDaunt wrote:To follow up on the discussion regarding Mueller's email seizures: According to published reports, Special Counsel Robert Mueller engaged in a mass seizure of all emails of the Trump transition team without even a warrant or a subpoena. In my opinion, a mass seizure – as is alleged here against Mueller – cannot conform to either Fourth Amendment standards or attorney-client privilege protections. The questions boils down to this: was there a reason for the individuals communicating by email, including with their lawyers, to believe their communications were private or privileged? Or, did the individuals forever waive or “implicitly consent” to any future search or seizure of their emails?
The Supreme Court in 2010 “counsels caution” before too soon defining “the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices” until popular use of the technology used was better developed socially. (City of Ontario, Cal. V. Quon, 560 U.S. 746 (2010). In other words, do most people expect privacy in that use of technology to communicate, or do they assume it is equivalent to talking in an open office where anyone from the public can walk by? The court made clear a government search was not reasonable if not “justified at its inception” or “excessively intrusive” or “not reasonably related to the objectives of the search.”
Put simply, the use of a government server, like the use of an employer’s server, does not control the privilege or privacy analysis. Instead, courts typically employ a four-factor test, that tends to be very fact-intensive, email-specific, and individual-specific. (In re Reserve Fund Securities and Derivative Litigation, 275 F.R.D. 154 (S.D.N.Y. 2011). First, whether the government or company maintains a policy banning personal use. Second, whether the government or employer monitors the use of the email. Third, whether third parties have a right of access to the emails beyond technical audits and maintenance. Fourth, whether the government or employer notifies the individual of the limits on privacy in the emails, whether the individual was aware of those policies, the use of those policies, and the monitoring of those policies. It boils down to whether a person in the individual’s shoes would have had no reasonable expectation of privacy in their email communications.
A fifth factor is relevant in the Fourth Amendment context: whether the government gave an individual notice and the individual had knowledge of the right to refuse to give consent to the future search of their emails. Courts held individuals who agreed, as a condition of employment to “any future searches” did not waive their right against such searches because the waiver failed to give them the “right to refuse to give consent to the future search.” For the government to claim implied consent or waiver, “requires clear notice that one’s conduct may result in a search being conducted of areas which the person has been warned are subject to search,” and such notice must ensure an individual “had knowledge of the right to refuse to give consent.” (Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F.Supp.2d 548 (S.D.N.Y. 2008). Hence, a broad waiver was found inadequate to permit a search. (Anobile v. Pellegrino, 303 F.3d 107, 124-25 (2d. Cir. 2002). The Supreme Court made it clear the question usually “must be addressed on a case-by-case basis” and rarely subject to blanket waivers of Fourth Amendment liberties. (City of Ontario, Cal. V. Quon, 560 U.S. 746 (2010).) As the court reiterated, “individuals do not lose Fourth Amendment rights” merely because they use government-provided servers, offices, or equipment. (O’Connor v. Ortega, 480 U.S. 709 (1987).
Courts held that an employee has a reasonably expectation of privacy in the contents of his computer even when given specific notice the computers could not be used for personal purposes and the individual had authorized disclosure for technical and maintenance audits. Leventhal v. Knapek, 266 F.3d 64, 74 (2d. Cir. 2001). Attorney-client privilege is broader. As courts have held, emails between government employees remained privileged even though sent over government email servers. (In re County of Erie, 473 F.3d 413 (2d Cir. 2007). Courts held an ex-employee could assert attorney-client privilege against use of such emails by his company even though emails were located on employer’s computer and employer gave employee notice any documents stored on computer not protected. (Curto v. Medical World Communications (E.D. N.Y. 2006).
The Mueller search runs afoul of many of these established court precedents and Fourth Amendment privacy and privilege principles. First, it appears Mueller searched and seized every email, without any kind of categorical or keyword search. This is exactly the kind of search the Supreme Court made clear was not allowed under the Fourth Amendment. This means Mueller can only prevail if he didn’t seize a single email of a single individual that the individual could have any expectation of either personal privacy or attorney client privilege in.
The primary excuses proffered so far for the broad seizure is the faulty assumption the use of a government server waived all privacy and all privilege of every email ever made over that server. As identified above, that has never been the law. The security and efficacy of government-owned servers for transition employees are not intended as a trap for the unwary to forever forfeit their privacy and privilege rights in their communications. Indeed, doing so would undermine use of such communications, and invite Hillary Clinton type bathroom closet email servers for everybody.
Mueller’s problem here is these were not even government employee emails; they were the emails of private individuals stored temporarily on a government server, and publicly declared to be “private materials” as a matter of custom, practice and the public policy of the National Archives. As Professor Jonathan Turley identifies, the National Archives recognize transition email records “are not federal or presidential records, but considered private materials.”
The only “notice” evidence otherwise given publicly is that an agreement between the GSA and the transition team identified the possibility of technical and maintenance audits, with some claiming this as a “waiver” of all privacy and privilege rights in the emails forever. Here again, the law does not support such a claim; even cases with much more specific notices and much less invasive searches, found privacy and privilege objections persisted. So far, a striking lack of arguments and evidence has been mounted for claiming every single email lacked any privacy or privilege.
It appears to me, Mueller deliberately skipped the court, the grand jury, and the government-imposed limits on investigative inquiries into worker conduct under Supreme Court precedent; he might have done so because he wanted a tactical edge, and was walling to ignore the Fourth Amendment restrictions on him to do so. Mueller may come to regret his choice. Source. The basic takeaway is that any notice or acknowledgement that the Trump team may have signed regarding its privacy rights is very far from being dispositive of the propriety of what Mueller did. Answer me this. Has the Trump team lodged a formal complaint with the investigation or any part of the judiciary? If not, why? They haven't had the opportunity. There's been no proceedings in which to lodge one yet.
Seems pretty stupid to complain to congress when they could just raise the issue at if charges are brought. Playing their hand early and all. But they never really planned on doing that. This was designed to be carried by Fox News.
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On December 19 2017 22:53 Plansix wrote:Show nested quote +On December 19 2017 22:10 xDaunt wrote:On December 19 2017 19:05 Gorsameth wrote:On December 19 2017 14:27 xDaunt wrote:To follow up on the discussion regarding Mueller's email seizures: According to published reports, Special Counsel Robert Mueller engaged in a mass seizure of all emails of the Trump transition team without even a warrant or a subpoena. In my opinion, a mass seizure – as is alleged here against Mueller – cannot conform to either Fourth Amendment standards or attorney-client privilege protections. The questions boils down to this: was there a reason for the individuals communicating by email, including with their lawyers, to believe their communications were private or privileged? Or, did the individuals forever waive or “implicitly consent” to any future search or seizure of their emails?
The Supreme Court in 2010 “counsels caution” before too soon defining “the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices” until popular use of the technology used was better developed socially. (City of Ontario, Cal. V. Quon, 560 U.S. 746 (2010). In other words, do most people expect privacy in that use of technology to communicate, or do they assume it is equivalent to talking in an open office where anyone from the public can walk by? The court made clear a government search was not reasonable if not “justified at its inception” or “excessively intrusive” or “not reasonably related to the objectives of the search.”
Put simply, the use of a government server, like the use of an employer’s server, does not control the privilege or privacy analysis. Instead, courts typically employ a four-factor test, that tends to be very fact-intensive, email-specific, and individual-specific. (In re Reserve Fund Securities and Derivative Litigation, 275 F.R.D. 154 (S.D.N.Y. 2011). First, whether the government or company maintains a policy banning personal use. Second, whether the government or employer monitors the use of the email. Third, whether third parties have a right of access to the emails beyond technical audits and maintenance. Fourth, whether the government or employer notifies the individual of the limits on privacy in the emails, whether the individual was aware of those policies, the use of those policies, and the monitoring of those policies. It boils down to whether a person in the individual’s shoes would have had no reasonable expectation of privacy in their email communications.
A fifth factor is relevant in the Fourth Amendment context: whether the government gave an individual notice and the individual had knowledge of the right to refuse to give consent to the future search of their emails. Courts held individuals who agreed, as a condition of employment to “any future searches” did not waive their right against such searches because the waiver failed to give them the “right to refuse to give consent to the future search.” For the government to claim implied consent or waiver, “requires clear notice that one’s conduct may result in a search being conducted of areas which the person has been warned are subject to search,” and such notice must ensure an individual “had knowledge of the right to refuse to give consent.” (Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F.Supp.2d 548 (S.D.N.Y. 2008). Hence, a broad waiver was found inadequate to permit a search. (Anobile v. Pellegrino, 303 F.3d 107, 124-25 (2d. Cir. 2002). The Supreme Court made it clear the question usually “must be addressed on a case-by-case basis” and rarely subject to blanket waivers of Fourth Amendment liberties. (City of Ontario, Cal. V. Quon, 560 U.S. 746 (2010).) As the court reiterated, “individuals do not lose Fourth Amendment rights” merely because they use government-provided servers, offices, or equipment. (O’Connor v. Ortega, 480 U.S. 709 (1987).
Courts held that an employee has a reasonably expectation of privacy in the contents of his computer even when given specific notice the computers could not be used for personal purposes and the individual had authorized disclosure for technical and maintenance audits. Leventhal v. Knapek, 266 F.3d 64, 74 (2d. Cir. 2001). Attorney-client privilege is broader. As courts have held, emails between government employees remained privileged even though sent over government email servers. (In re County of Erie, 473 F.3d 413 (2d Cir. 2007). Courts held an ex-employee could assert attorney-client privilege against use of such emails by his company even though emails were located on employer’s computer and employer gave employee notice any documents stored on computer not protected. (Curto v. Medical World Communications (E.D. N.Y. 2006).
The Mueller search runs afoul of many of these established court precedents and Fourth Amendment privacy and privilege principles. First, it appears Mueller searched and seized every email, without any kind of categorical or keyword search. This is exactly the kind of search the Supreme Court made clear was not allowed under the Fourth Amendment. This means Mueller can only prevail if he didn’t seize a single email of a single individual that the individual could have any expectation of either personal privacy or attorney client privilege in.
The primary excuses proffered so far for the broad seizure is the faulty assumption the use of a government server waived all privacy and all privilege of every email ever made over that server. As identified above, that has never been the law. The security and efficacy of government-owned servers for transition employees are not intended as a trap for the unwary to forever forfeit their privacy and privilege rights in their communications. Indeed, doing so would undermine use of such communications, and invite Hillary Clinton type bathroom closet email servers for everybody.
Mueller’s problem here is these were not even government employee emails; they were the emails of private individuals stored temporarily on a government server, and publicly declared to be “private materials” as a matter of custom, practice and the public policy of the National Archives. As Professor Jonathan Turley identifies, the National Archives recognize transition email records “are not federal or presidential records, but considered private materials.”
The only “notice” evidence otherwise given publicly is that an agreement between the GSA and the transition team identified the possibility of technical and maintenance audits, with some claiming this as a “waiver” of all privacy and privilege rights in the emails forever. Here again, the law does not support such a claim; even cases with much more specific notices and much less invasive searches, found privacy and privilege objections persisted. So far, a striking lack of arguments and evidence has been mounted for claiming every single email lacked any privacy or privilege.
It appears to me, Mueller deliberately skipped the court, the grand jury, and the government-imposed limits on investigative inquiries into worker conduct under Supreme Court precedent; he might have done so because he wanted a tactical edge, and was walling to ignore the Fourth Amendment restrictions on him to do so. Mueller may come to regret his choice. Source. The basic takeaway is that any notice or acknowledgement that the Trump team may have signed regarding its privacy rights is very far from being dispositive of the propriety of what Mueller did. Answer me this. Has the Trump team lodged a formal complaint with the investigation or any part of the judiciary? If not, why? They haven't had the opportunity. There's been no proceedings in which to lodge one yet. Seems pretty stupid to complain to congress when they could just raise the issue at if charges are brought. Playing their hand early and all. But they never really planned on doing that. This was designed to be carried by Fox News.
Of course the letter is a PR stunt. That doesn't change the merits of its contents.
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United States24701 Posts
Attacking the Mueller team investigation by any means necessary is an attempt to lay the groundwork for pardoning Trump allies without fully losing in the court of public opinion. Trump has been noncommittal with regards to his pardon power but will likely use it once he thinks the waters are sufficiently muddy.
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On December 19 2017 23:01 xDaunt wrote:Show nested quote +On December 19 2017 22:53 Plansix wrote:On December 19 2017 22:10 xDaunt wrote:On December 19 2017 19:05 Gorsameth wrote:On December 19 2017 14:27 xDaunt wrote:To follow up on the discussion regarding Mueller's email seizures: According to published reports, Special Counsel Robert Mueller engaged in a mass seizure of all emails of the Trump transition team without even a warrant or a subpoena. In my opinion, a mass seizure – as is alleged here against Mueller – cannot conform to either Fourth Amendment standards or attorney-client privilege protections. The questions boils down to this: was there a reason for the individuals communicating by email, including with their lawyers, to believe their communications were private or privileged? Or, did the individuals forever waive or “implicitly consent” to any future search or seizure of their emails?
The Supreme Court in 2010 “counsels caution” before too soon defining “the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices” until popular use of the technology used was better developed socially. (City of Ontario, Cal. V. Quon, 560 U.S. 746 (2010). In other words, do most people expect privacy in that use of technology to communicate, or do they assume it is equivalent to talking in an open office where anyone from the public can walk by? The court made clear a government search was not reasonable if not “justified at its inception” or “excessively intrusive” or “not reasonably related to the objectives of the search.”
Put simply, the use of a government server, like the use of an employer’s server, does not control the privilege or privacy analysis. Instead, courts typically employ a four-factor test, that tends to be very fact-intensive, email-specific, and individual-specific. (In re Reserve Fund Securities and Derivative Litigation, 275 F.R.D. 154 (S.D.N.Y. 2011). First, whether the government or company maintains a policy banning personal use. Second, whether the government or employer monitors the use of the email. Third, whether third parties have a right of access to the emails beyond technical audits and maintenance. Fourth, whether the government or employer notifies the individual of the limits on privacy in the emails, whether the individual was aware of those policies, the use of those policies, and the monitoring of those policies. It boils down to whether a person in the individual’s shoes would have had no reasonable expectation of privacy in their email communications.
A fifth factor is relevant in the Fourth Amendment context: whether the government gave an individual notice and the individual had knowledge of the right to refuse to give consent to the future search of their emails. Courts held individuals who agreed, as a condition of employment to “any future searches” did not waive their right against such searches because the waiver failed to give them the “right to refuse to give consent to the future search.” For the government to claim implied consent or waiver, “requires clear notice that one’s conduct may result in a search being conducted of areas which the person has been warned are subject to search,” and such notice must ensure an individual “had knowledge of the right to refuse to give consent.” (Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F.Supp.2d 548 (S.D.N.Y. 2008). Hence, a broad waiver was found inadequate to permit a search. (Anobile v. Pellegrino, 303 F.3d 107, 124-25 (2d. Cir. 2002). The Supreme Court made it clear the question usually “must be addressed on a case-by-case basis” and rarely subject to blanket waivers of Fourth Amendment liberties. (City of Ontario, Cal. V. Quon, 560 U.S. 746 (2010).) As the court reiterated, “individuals do not lose Fourth Amendment rights” merely because they use government-provided servers, offices, or equipment. (O’Connor v. Ortega, 480 U.S. 709 (1987).
Courts held that an employee has a reasonably expectation of privacy in the contents of his computer even when given specific notice the computers could not be used for personal purposes and the individual had authorized disclosure for technical and maintenance audits. Leventhal v. Knapek, 266 F.3d 64, 74 (2d. Cir. 2001). Attorney-client privilege is broader. As courts have held, emails between government employees remained privileged even though sent over government email servers. (In re County of Erie, 473 F.3d 413 (2d Cir. 2007). Courts held an ex-employee could assert attorney-client privilege against use of such emails by his company even though emails were located on employer’s computer and employer gave employee notice any documents stored on computer not protected. (Curto v. Medical World Communications (E.D. N.Y. 2006).
The Mueller search runs afoul of many of these established court precedents and Fourth Amendment privacy and privilege principles. First, it appears Mueller searched and seized every email, without any kind of categorical or keyword search. This is exactly the kind of search the Supreme Court made clear was not allowed under the Fourth Amendment. This means Mueller can only prevail if he didn’t seize a single email of a single individual that the individual could have any expectation of either personal privacy or attorney client privilege in.
The primary excuses proffered so far for the broad seizure is the faulty assumption the use of a government server waived all privacy and all privilege of every email ever made over that server. As identified above, that has never been the law. The security and efficacy of government-owned servers for transition employees are not intended as a trap for the unwary to forever forfeit their privacy and privilege rights in their communications. Indeed, doing so would undermine use of such communications, and invite Hillary Clinton type bathroom closet email servers for everybody.
Mueller’s problem here is these were not even government employee emails; they were the emails of private individuals stored temporarily on a government server, and publicly declared to be “private materials” as a matter of custom, practice and the public policy of the National Archives. As Professor Jonathan Turley identifies, the National Archives recognize transition email records “are not federal or presidential records, but considered private materials.”
The only “notice” evidence otherwise given publicly is that an agreement between the GSA and the transition team identified the possibility of technical and maintenance audits, with some claiming this as a “waiver” of all privacy and privilege rights in the emails forever. Here again, the law does not support such a claim; even cases with much more specific notices and much less invasive searches, found privacy and privilege objections persisted. So far, a striking lack of arguments and evidence has been mounted for claiming every single email lacked any privacy or privilege.
It appears to me, Mueller deliberately skipped the court, the grand jury, and the government-imposed limits on investigative inquiries into worker conduct under Supreme Court precedent; he might have done so because he wanted a tactical edge, and was walling to ignore the Fourth Amendment restrictions on him to do so. Mueller may come to regret his choice. Source. The basic takeaway is that any notice or acknowledgement that the Trump team may have signed regarding its privacy rights is very far from being dispositive of the propriety of what Mueller did. Answer me this. Has the Trump team lodged a formal complaint with the investigation or any part of the judiciary? If not, why? They haven't had the opportunity. There's been no proceedings in which to lodge one yet. Seems pretty stupid to complain to congress when they could just raise the issue at if charges are brought. Playing their hand early and all. But they never really planned on doing that. This was designed to be carried by Fox News. Of course the letter is a PR stunt. That doesn't change the merits of its contents.
It sort of does. If the evidence was collected improperly, it is a defense in the case. If Trumps attorneys planned on raising that issue, they have warned the prosecutor to make sure their chain of evidence doesn’t hinge on those suspect emails. They flagged the issue for the investigators in advance. Which leads me to assume that they know their claim is questionable at best and not a great defense, but will serve in the effort to discredit the investigation. Or they are bad at their job. Both are likely.
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I don't understand how you can possibly have an expectation of privacy with respect to law enforcement actions on an email account where you signed a waiver saying you would not have privacy with respect to law enforcement actions. It's gibberish. This is not an "I understand these emails are not mine" waiver (which seems to be what they're talking about in many of the employee cases), this is a "you can use my emails in legal actions against me or other individuals" waiver.
Edit: the privilege stuff seems like the more relevant component, but again they can't claim executive privilege and using it for attorney interactions seems like private use that shouldn't have been on the .gov address.
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On December 19 2017 23:05 Plansix wrote:Show nested quote +On December 19 2017 23:01 xDaunt wrote:On December 19 2017 22:53 Plansix wrote:On December 19 2017 22:10 xDaunt wrote:On December 19 2017 19:05 Gorsameth wrote:On December 19 2017 14:27 xDaunt wrote:To follow up on the discussion regarding Mueller's email seizures: According to published reports, Special Counsel Robert Mueller engaged in a mass seizure of all emails of the Trump transition team without even a warrant or a subpoena. In my opinion, a mass seizure – as is alleged here against Mueller – cannot conform to either Fourth Amendment standards or attorney-client privilege protections. The questions boils down to this: was there a reason for the individuals communicating by email, including with their lawyers, to believe their communications were private or privileged? Or, did the individuals forever waive or “implicitly consent” to any future search or seizure of their emails?
The Supreme Court in 2010 “counsels caution” before too soon defining “the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices” until popular use of the technology used was better developed socially. (City of Ontario, Cal. V. Quon, 560 U.S. 746 (2010). In other words, do most people expect privacy in that use of technology to communicate, or do they assume it is equivalent to talking in an open office where anyone from the public can walk by? The court made clear a government search was not reasonable if not “justified at its inception” or “excessively intrusive” or “not reasonably related to the objectives of the search.”
Put simply, the use of a government server, like the use of an employer’s server, does not control the privilege or privacy analysis. Instead, courts typically employ a four-factor test, that tends to be very fact-intensive, email-specific, and individual-specific. (In re Reserve Fund Securities and Derivative Litigation, 275 F.R.D. 154 (S.D.N.Y. 2011). First, whether the government or company maintains a policy banning personal use. Second, whether the government or employer monitors the use of the email. Third, whether third parties have a right of access to the emails beyond technical audits and maintenance. Fourth, whether the government or employer notifies the individual of the limits on privacy in the emails, whether the individual was aware of those policies, the use of those policies, and the monitoring of those policies. It boils down to whether a person in the individual’s shoes would have had no reasonable expectation of privacy in their email communications.
A fifth factor is relevant in the Fourth Amendment context: whether the government gave an individual notice and the individual had knowledge of the right to refuse to give consent to the future search of their emails. Courts held individuals who agreed, as a condition of employment to “any future searches” did not waive their right against such searches because the waiver failed to give them the “right to refuse to give consent to the future search.” For the government to claim implied consent or waiver, “requires clear notice that one’s conduct may result in a search being conducted of areas which the person has been warned are subject to search,” and such notice must ensure an individual “had knowledge of the right to refuse to give consent.” (Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F.Supp.2d 548 (S.D.N.Y. 2008). Hence, a broad waiver was found inadequate to permit a search. (Anobile v. Pellegrino, 303 F.3d 107, 124-25 (2d. Cir. 2002). The Supreme Court made it clear the question usually “must be addressed on a case-by-case basis” and rarely subject to blanket waivers of Fourth Amendment liberties. (City of Ontario, Cal. V. Quon, 560 U.S. 746 (2010).) As the court reiterated, “individuals do not lose Fourth Amendment rights” merely because they use government-provided servers, offices, or equipment. (O’Connor v. Ortega, 480 U.S. 709 (1987).
Courts held that an employee has a reasonably expectation of privacy in the contents of his computer even when given specific notice the computers could not be used for personal purposes and the individual had authorized disclosure for technical and maintenance audits. Leventhal v. Knapek, 266 F.3d 64, 74 (2d. Cir. 2001). Attorney-client privilege is broader. As courts have held, emails between government employees remained privileged even though sent over government email servers. (In re County of Erie, 473 F.3d 413 (2d Cir. 2007). Courts held an ex-employee could assert attorney-client privilege against use of such emails by his company even though emails were located on employer’s computer and employer gave employee notice any documents stored on computer not protected. (Curto v. Medical World Communications (E.D. N.Y. 2006).
The Mueller search runs afoul of many of these established court precedents and Fourth Amendment privacy and privilege principles. First, it appears Mueller searched and seized every email, without any kind of categorical or keyword search. This is exactly the kind of search the Supreme Court made clear was not allowed under the Fourth Amendment. This means Mueller can only prevail if he didn’t seize a single email of a single individual that the individual could have any expectation of either personal privacy or attorney client privilege in.
The primary excuses proffered so far for the broad seizure is the faulty assumption the use of a government server waived all privacy and all privilege of every email ever made over that server. As identified above, that has never been the law. The security and efficacy of government-owned servers for transition employees are not intended as a trap for the unwary to forever forfeit their privacy and privilege rights in their communications. Indeed, doing so would undermine use of such communications, and invite Hillary Clinton type bathroom closet email servers for everybody.
Mueller’s problem here is these were not even government employee emails; they were the emails of private individuals stored temporarily on a government server, and publicly declared to be “private materials” as a matter of custom, practice and the public policy of the National Archives. As Professor Jonathan Turley identifies, the National Archives recognize transition email records “are not federal or presidential records, but considered private materials.”
The only “notice” evidence otherwise given publicly is that an agreement between the GSA and the transition team identified the possibility of technical and maintenance audits, with some claiming this as a “waiver” of all privacy and privilege rights in the emails forever. Here again, the law does not support such a claim; even cases with much more specific notices and much less invasive searches, found privacy and privilege objections persisted. So far, a striking lack of arguments and evidence has been mounted for claiming every single email lacked any privacy or privilege.
It appears to me, Mueller deliberately skipped the court, the grand jury, and the government-imposed limits on investigative inquiries into worker conduct under Supreme Court precedent; he might have done so because he wanted a tactical edge, and was walling to ignore the Fourth Amendment restrictions on him to do so. Mueller may come to regret his choice. Source. The basic takeaway is that any notice or acknowledgement that the Trump team may have signed regarding its privacy rights is very far from being dispositive of the propriety of what Mueller did. Answer me this. Has the Trump team lodged a formal complaint with the investigation or any part of the judiciary? If not, why? They haven't had the opportunity. There's been no proceedings in which to lodge one yet. Seems pretty stupid to complain to congress when they could just raise the issue at if charges are brought. Playing their hand early and all. But they never really planned on doing that. This was designed to be carried by Fox News. Of course the letter is a PR stunt. That doesn't change the merits of its contents. It sort of does. If the evidence was collected improperly, it is a defense in the case. If Trumps attorneys planned on raising that issue, they have warned the prosecutor to make sure their chain of evidence doesn’t hinge on those suspect emails. They flagged the issue for the investigators in advance. Which leads me to assume that they know their claim is questionable at best and not a great defense, but will serve in the effort to discredit the investigation. Or they are bad at their job. Both are likely.
Those are strategy considerations, not the merits of the charge.
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On December 19 2017 22:10 xDaunt wrote:Show nested quote +On December 19 2017 19:05 Gorsameth wrote:On December 19 2017 14:27 xDaunt wrote:To follow up on the discussion regarding Mueller's email seizures: According to published reports, Special Counsel Robert Mueller engaged in a mass seizure of all emails of the Trump transition team without even a warrant or a subpoena. In my opinion, a mass seizure – as is alleged here against Mueller – cannot conform to either Fourth Amendment standards or attorney-client privilege protections. The questions boils down to this: was there a reason for the individuals communicating by email, including with their lawyers, to believe their communications were private or privileged? Or, did the individuals forever waive or “implicitly consent” to any future search or seizure of their emails?
The Supreme Court in 2010 “counsels caution” before too soon defining “the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices” until popular use of the technology used was better developed socially. (City of Ontario, Cal. V. Quon, 560 U.S. 746 (2010). In other words, do most people expect privacy in that use of technology to communicate, or do they assume it is equivalent to talking in an open office where anyone from the public can walk by? The court made clear a government search was not reasonable if not “justified at its inception” or “excessively intrusive” or “not reasonably related to the objectives of the search.”
Put simply, the use of a government server, like the use of an employer’s server, does not control the privilege or privacy analysis. Instead, courts typically employ a four-factor test, that tends to be very fact-intensive, email-specific, and individual-specific. (In re Reserve Fund Securities and Derivative Litigation, 275 F.R.D. 154 (S.D.N.Y. 2011). First, whether the government or company maintains a policy banning personal use. Second, whether the government or employer monitors the use of the email. Third, whether third parties have a right of access to the emails beyond technical audits and maintenance. Fourth, whether the government or employer notifies the individual of the limits on privacy in the emails, whether the individual was aware of those policies, the use of those policies, and the monitoring of those policies. It boils down to whether a person in the individual’s shoes would have had no reasonable expectation of privacy in their email communications.
A fifth factor is relevant in the Fourth Amendment context: whether the government gave an individual notice and the individual had knowledge of the right to refuse to give consent to the future search of their emails. Courts held individuals who agreed, as a condition of employment to “any future searches” did not waive their right against such searches because the waiver failed to give them the “right to refuse to give consent to the future search.” For the government to claim implied consent or waiver, “requires clear notice that one’s conduct may result in a search being conducted of areas which the person has been warned are subject to search,” and such notice must ensure an individual “had knowledge of the right to refuse to give consent.” (Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F.Supp.2d 548 (S.D.N.Y. 2008). Hence, a broad waiver was found inadequate to permit a search. (Anobile v. Pellegrino, 303 F.3d 107, 124-25 (2d. Cir. 2002). The Supreme Court made it clear the question usually “must be addressed on a case-by-case basis” and rarely subject to blanket waivers of Fourth Amendment liberties. (City of Ontario, Cal. V. Quon, 560 U.S. 746 (2010).) As the court reiterated, “individuals do not lose Fourth Amendment rights” merely because they use government-provided servers, offices, or equipment. (O’Connor v. Ortega, 480 U.S. 709 (1987).
Courts held that an employee has a reasonably expectation of privacy in the contents of his computer even when given specific notice the computers could not be used for personal purposes and the individual had authorized disclosure for technical and maintenance audits. Leventhal v. Knapek, 266 F.3d 64, 74 (2d. Cir. 2001). Attorney-client privilege is broader. As courts have held, emails between government employees remained privileged even though sent over government email servers. (In re County of Erie, 473 F.3d 413 (2d Cir. 2007). Courts held an ex-employee could assert attorney-client privilege against use of such emails by his company even though emails were located on employer’s computer and employer gave employee notice any documents stored on computer not protected. (Curto v. Medical World Communications (E.D. N.Y. 2006).
The Mueller search runs afoul of many of these established court precedents and Fourth Amendment privacy and privilege principles. First, it appears Mueller searched and seized every email, without any kind of categorical or keyword search. This is exactly the kind of search the Supreme Court made clear was not allowed under the Fourth Amendment. This means Mueller can only prevail if he didn’t seize a single email of a single individual that the individual could have any expectation of either personal privacy or attorney client privilege in.
The primary excuses proffered so far for the broad seizure is the faulty assumption the use of a government server waived all privacy and all privilege of every email ever made over that server. As identified above, that has never been the law. The security and efficacy of government-owned servers for transition employees are not intended as a trap for the unwary to forever forfeit their privacy and privilege rights in their communications. Indeed, doing so would undermine use of such communications, and invite Hillary Clinton type bathroom closet email servers for everybody.
Mueller’s problem here is these were not even government employee emails; they were the emails of private individuals stored temporarily on a government server, and publicly declared to be “private materials” as a matter of custom, practice and the public policy of the National Archives. As Professor Jonathan Turley identifies, the National Archives recognize transition email records “are not federal or presidential records, but considered private materials.”
The only “notice” evidence otherwise given publicly is that an agreement between the GSA and the transition team identified the possibility of technical and maintenance audits, with some claiming this as a “waiver” of all privacy and privilege rights in the emails forever. Here again, the law does not support such a claim; even cases with much more specific notices and much less invasive searches, found privacy and privilege objections persisted. So far, a striking lack of arguments and evidence has been mounted for claiming every single email lacked any privacy or privilege.
It appears to me, Mueller deliberately skipped the court, the grand jury, and the government-imposed limits on investigative inquiries into worker conduct under Supreme Court precedent; he might have done so because he wanted a tactical edge, and was walling to ignore the Fourth Amendment restrictions on him to do so. Mueller may come to regret his choice. Source. The basic takeaway is that any notice or acknowledgement that the Trump team may have signed regarding its privacy rights is very far from being dispositive of the propriety of what Mueller did. Answer me this. Has the Trump team lodged a formal complaint with the investigation or any part of the judiciary? If not, why? They haven't had the opportunity. There's been no proceedings in which to lodge one yet.
I don't buy it.
No response to Mueller, none to the AG of the DoJ. But they ask congress to change the rules, which implies what happened isn't illegal (because then they wouldn't need to change it).
No formal protest has been filed because there is no basis for a formal protest. There is just a bunch of lies you can sell to the public.
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On December 19 2017 23:17 xDaunt wrote:Show nested quote +On December 19 2017 23:05 Plansix wrote:On December 19 2017 23:01 xDaunt wrote:On December 19 2017 22:53 Plansix wrote:On December 19 2017 22:10 xDaunt wrote:On December 19 2017 19:05 Gorsameth wrote:On December 19 2017 14:27 xDaunt wrote:To follow up on the discussion regarding Mueller's email seizures: According to published reports, Special Counsel Robert Mueller engaged in a mass seizure of all emails of the Trump transition team without even a warrant or a subpoena. In my opinion, a mass seizure – as is alleged here against Mueller – cannot conform to either Fourth Amendment standards or attorney-client privilege protections. The questions boils down to this: was there a reason for the individuals communicating by email, including with their lawyers, to believe their communications were private or privileged? Or, did the individuals forever waive or “implicitly consent” to any future search or seizure of their emails?
The Supreme Court in 2010 “counsels caution” before too soon defining “the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices” until popular use of the technology used was better developed socially. (City of Ontario, Cal. V. Quon, 560 U.S. 746 (2010). In other words, do most people expect privacy in that use of technology to communicate, or do they assume it is equivalent to talking in an open office where anyone from the public can walk by? The court made clear a government search was not reasonable if not “justified at its inception” or “excessively intrusive” or “not reasonably related to the objectives of the search.”
Put simply, the use of a government server, like the use of an employer’s server, does not control the privilege or privacy analysis. Instead, courts typically employ a four-factor test, that tends to be very fact-intensive, email-specific, and individual-specific. (In re Reserve Fund Securities and Derivative Litigation, 275 F.R.D. 154 (S.D.N.Y. 2011). First, whether the government or company maintains a policy banning personal use. Second, whether the government or employer monitors the use of the email. Third, whether third parties have a right of access to the emails beyond technical audits and maintenance. Fourth, whether the government or employer notifies the individual of the limits on privacy in the emails, whether the individual was aware of those policies, the use of those policies, and the monitoring of those policies. It boils down to whether a person in the individual’s shoes would have had no reasonable expectation of privacy in their email communications.
A fifth factor is relevant in the Fourth Amendment context: whether the government gave an individual notice and the individual had knowledge of the right to refuse to give consent to the future search of their emails. Courts held individuals who agreed, as a condition of employment to “any future searches” did not waive their right against such searches because the waiver failed to give them the “right to refuse to give consent to the future search.” For the government to claim implied consent or waiver, “requires clear notice that one’s conduct may result in a search being conducted of areas which the person has been warned are subject to search,” and such notice must ensure an individual “had knowledge of the right to refuse to give consent.” (Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F.Supp.2d 548 (S.D.N.Y. 2008). Hence, a broad waiver was found inadequate to permit a search. (Anobile v. Pellegrino, 303 F.3d 107, 124-25 (2d. Cir. 2002). The Supreme Court made it clear the question usually “must be addressed on a case-by-case basis” and rarely subject to blanket waivers of Fourth Amendment liberties. (City of Ontario, Cal. V. Quon, 560 U.S. 746 (2010).) As the court reiterated, “individuals do not lose Fourth Amendment rights” merely because they use government-provided servers, offices, or equipment. (O’Connor v. Ortega, 480 U.S. 709 (1987).
Courts held that an employee has a reasonably expectation of privacy in the contents of his computer even when given specific notice the computers could not be used for personal purposes and the individual had authorized disclosure for technical and maintenance audits. Leventhal v. Knapek, 266 F.3d 64, 74 (2d. Cir. 2001). Attorney-client privilege is broader. As courts have held, emails between government employees remained privileged even though sent over government email servers. (In re County of Erie, 473 F.3d 413 (2d Cir. 2007). Courts held an ex-employee could assert attorney-client privilege against use of such emails by his company even though emails were located on employer’s computer and employer gave employee notice any documents stored on computer not protected. (Curto v. Medical World Communications (E.D. N.Y. 2006).
The Mueller search runs afoul of many of these established court precedents and Fourth Amendment privacy and privilege principles. First, it appears Mueller searched and seized every email, without any kind of categorical or keyword search. This is exactly the kind of search the Supreme Court made clear was not allowed under the Fourth Amendment. This means Mueller can only prevail if he didn’t seize a single email of a single individual that the individual could have any expectation of either personal privacy or attorney client privilege in.
The primary excuses proffered so far for the broad seizure is the faulty assumption the use of a government server waived all privacy and all privilege of every email ever made over that server. As identified above, that has never been the law. The security and efficacy of government-owned servers for transition employees are not intended as a trap for the unwary to forever forfeit their privacy and privilege rights in their communications. Indeed, doing so would undermine use of such communications, and invite Hillary Clinton type bathroom closet email servers for everybody.
Mueller’s problem here is these were not even government employee emails; they were the emails of private individuals stored temporarily on a government server, and publicly declared to be “private materials” as a matter of custom, practice and the public policy of the National Archives. As Professor Jonathan Turley identifies, the National Archives recognize transition email records “are not federal or presidential records, but considered private materials.”
The only “notice” evidence otherwise given publicly is that an agreement between the GSA and the transition team identified the possibility of technical and maintenance audits, with some claiming this as a “waiver” of all privacy and privilege rights in the emails forever. Here again, the law does not support such a claim; even cases with much more specific notices and much less invasive searches, found privacy and privilege objections persisted. So far, a striking lack of arguments and evidence has been mounted for claiming every single email lacked any privacy or privilege.
It appears to me, Mueller deliberately skipped the court, the grand jury, and the government-imposed limits on investigative inquiries into worker conduct under Supreme Court precedent; he might have done so because he wanted a tactical edge, and was walling to ignore the Fourth Amendment restrictions on him to do so. Mueller may come to regret his choice. Source. The basic takeaway is that any notice or acknowledgement that the Trump team may have signed regarding its privacy rights is very far from being dispositive of the propriety of what Mueller did. Answer me this. Has the Trump team lodged a formal complaint with the investigation or any part of the judiciary? If not, why? They haven't had the opportunity. There's been no proceedings in which to lodge one yet. Seems pretty stupid to complain to congress when they could just raise the issue at if charges are brought. Playing their hand early and all. But they never really planned on doing that. This was designed to be carried by Fox News. Of course the letter is a PR stunt. That doesn't change the merits of its contents. It sort of does. If the evidence was collected improperly, it is a defense in the case. If Trumps attorneys planned on raising that issue, they have warned the prosecutor to make sure their chain of evidence doesn’t hinge on those suspect emails. They flagged the issue for the investigators in advance. Which leads me to assume that they know their claim is questionable at best and not a great defense, but will serve in the effort to discredit the investigation. Or they are bad at their job. Both are likely. Those are strategy considerations, not the merits of the charge.
If the merit of the claim isn't taken into account during the strategic plan, they are pretty shit attorneys. If they felt this evidence was improperly collected, they would have raised it at trial.
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On December 19 2017 23:25 Gorsameth wrote:Show nested quote +On December 19 2017 22:10 xDaunt wrote:On December 19 2017 19:05 Gorsameth wrote:On December 19 2017 14:27 xDaunt wrote:To follow up on the discussion regarding Mueller's email seizures: According to published reports, Special Counsel Robert Mueller engaged in a mass seizure of all emails of the Trump transition team without even a warrant or a subpoena. In my opinion, a mass seizure – as is alleged here against Mueller – cannot conform to either Fourth Amendment standards or attorney-client privilege protections. The questions boils down to this: was there a reason for the individuals communicating by email, including with their lawyers, to believe their communications were private or privileged? Or, did the individuals forever waive or “implicitly consent” to any future search or seizure of their emails?
The Supreme Court in 2010 “counsels caution” before too soon defining “the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices” until popular use of the technology used was better developed socially. (City of Ontario, Cal. V. Quon, 560 U.S. 746 (2010). In other words, do most people expect privacy in that use of technology to communicate, or do they assume it is equivalent to talking in an open office where anyone from the public can walk by? The court made clear a government search was not reasonable if not “justified at its inception” or “excessively intrusive” or “not reasonably related to the objectives of the search.”
Put simply, the use of a government server, like the use of an employer’s server, does not control the privilege or privacy analysis. Instead, courts typically employ a four-factor test, that tends to be very fact-intensive, email-specific, and individual-specific. (In re Reserve Fund Securities and Derivative Litigation, 275 F.R.D. 154 (S.D.N.Y. 2011). First, whether the government or company maintains a policy banning personal use. Second, whether the government or employer monitors the use of the email. Third, whether third parties have a right of access to the emails beyond technical audits and maintenance. Fourth, whether the government or employer notifies the individual of the limits on privacy in the emails, whether the individual was aware of those policies, the use of those policies, and the monitoring of those policies. It boils down to whether a person in the individual’s shoes would have had no reasonable expectation of privacy in their email communications.
A fifth factor is relevant in the Fourth Amendment context: whether the government gave an individual notice and the individual had knowledge of the right to refuse to give consent to the future search of their emails. Courts held individuals who agreed, as a condition of employment to “any future searches” did not waive their right against such searches because the waiver failed to give them the “right to refuse to give consent to the future search.” For the government to claim implied consent or waiver, “requires clear notice that one’s conduct may result in a search being conducted of areas which the person has been warned are subject to search,” and such notice must ensure an individual “had knowledge of the right to refuse to give consent.” (Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F.Supp.2d 548 (S.D.N.Y. 2008). Hence, a broad waiver was found inadequate to permit a search. (Anobile v. Pellegrino, 303 F.3d 107, 124-25 (2d. Cir. 2002). The Supreme Court made it clear the question usually “must be addressed on a case-by-case basis” and rarely subject to blanket waivers of Fourth Amendment liberties. (City of Ontario, Cal. V. Quon, 560 U.S. 746 (2010).) As the court reiterated, “individuals do not lose Fourth Amendment rights” merely because they use government-provided servers, offices, or equipment. (O’Connor v. Ortega, 480 U.S. 709 (1987).
Courts held that an employee has a reasonably expectation of privacy in the contents of his computer even when given specific notice the computers could not be used for personal purposes and the individual had authorized disclosure for technical and maintenance audits. Leventhal v. Knapek, 266 F.3d 64, 74 (2d. Cir. 2001). Attorney-client privilege is broader. As courts have held, emails between government employees remained privileged even though sent over government email servers. (In re County of Erie, 473 F.3d 413 (2d Cir. 2007). Courts held an ex-employee could assert attorney-client privilege against use of such emails by his company even though emails were located on employer’s computer and employer gave employee notice any documents stored on computer not protected. (Curto v. Medical World Communications (E.D. N.Y. 2006).
The Mueller search runs afoul of many of these established court precedents and Fourth Amendment privacy and privilege principles. First, it appears Mueller searched and seized every email, without any kind of categorical or keyword search. This is exactly the kind of search the Supreme Court made clear was not allowed under the Fourth Amendment. This means Mueller can only prevail if he didn’t seize a single email of a single individual that the individual could have any expectation of either personal privacy or attorney client privilege in.
The primary excuses proffered so far for the broad seizure is the faulty assumption the use of a government server waived all privacy and all privilege of every email ever made over that server. As identified above, that has never been the law. The security and efficacy of government-owned servers for transition employees are not intended as a trap for the unwary to forever forfeit their privacy and privilege rights in their communications. Indeed, doing so would undermine use of such communications, and invite Hillary Clinton type bathroom closet email servers for everybody.
Mueller’s problem here is these were not even government employee emails; they were the emails of private individuals stored temporarily on a government server, and publicly declared to be “private materials” as a matter of custom, practice and the public policy of the National Archives. As Professor Jonathan Turley identifies, the National Archives recognize transition email records “are not federal or presidential records, but considered private materials.”
The only “notice” evidence otherwise given publicly is that an agreement between the GSA and the transition team identified the possibility of technical and maintenance audits, with some claiming this as a “waiver” of all privacy and privilege rights in the emails forever. Here again, the law does not support such a claim; even cases with much more specific notices and much less invasive searches, found privacy and privilege objections persisted. So far, a striking lack of arguments and evidence has been mounted for claiming every single email lacked any privacy or privilege.
It appears to me, Mueller deliberately skipped the court, the grand jury, and the government-imposed limits on investigative inquiries into worker conduct under Supreme Court precedent; he might have done so because he wanted a tactical edge, and was walling to ignore the Fourth Amendment restrictions on him to do so. Mueller may come to regret his choice. Source. The basic takeaway is that any notice or acknowledgement that the Trump team may have signed regarding its privacy rights is very far from being dispositive of the propriety of what Mueller did. Answer me this. Has the Trump team lodged a formal complaint with the investigation or any part of the judiciary? If not, why? They haven't had the opportunity. There's been no proceedings in which to lodge one yet. I don't buy it. No response to Mueller, none to the AG of the DoJ. But they ask congress to change the rules, which implies what happened isn't illegal (because then they wouldn't need to change it). No formal protest has been filed because there is no basis for a formal protest. There is just a bunch of lies you can sell to the public.
Criminal procedure isn’t really debatable here.
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I've read New Mexico has only a few years of unpolluted water left in it's Aquifers.
By 9am, it’s already 100F (38C). In the desert afternoons, rain gathers on the horizon, teasing – and then it disappears. There is so much heaviness, so much waiting.
I pulled on to the ranch of Anastasia Rabin with Audra Mulkern, a Washington-based photographer and founder of the Female Farmer Project. We were on assignment for a story and chasing a statistic: according to the most recent US census, Arizona is the state with the highest proportion of female farm operators.
Despite the fact that women have always farmed, they have been left out of our agricultural narrative. An incomplete story has real consequences: women have been left off land titles and bank documents; they have been denied federal loans and training opportunities; and until the 1982 census of agriculture, female farmers were not counted at all.
At Anastasia’s, we shadowed her on her daily chores – as she milked the goats and then walked them out on the range to browse the desert brush. And she introduced us to Jo Geerdes, her 78-year-old neighbor and mentor. At the confluence of their stories, we felt the pull of possibility: the potential for mentorship between female farmers and the return of a much-needed business for southern Arizona. And we felt the harsh clip of reality: the human cost of food production amid an arid landscape being sucked dry of its groundwater.
For Audra and me, their story has lingered.
Anastasia Rabin, 39, ranches on a 160-acre piece of rangeland in Cochise County. The land is scrubby, flat, dry – dotted with creosote bushes and spindly mesquite trees. On the horizon are the silver silhouettes of grain silos.
In Arizona, 45% of principal and secondary farm operators are women. Nationally, that same statistic is 30% – a total of 1 million women operating farms or ranches on more than 62m acres and generating $12.9bn in annual agricultural sales.
Farming does not respect personal boundaries, exhaustion levels, or breaking points. It is a lifestyle, a spilling over of beauties and emergencies – sick animals, bolting crops, impending freezes, equipment failures, last minute orders – and all of the coinciding human actions and emotions.
A farmer cannot ever fully leave her farm.
Anastasia admits to needing solitude – even craving it during times of high stress. But rural isolation has also created a tapestry of challenges, some of which she says have been harrowing.
There is no one to depend on, to help with chores, to hold the wire taut while repairing a fence, to share in the beauty and risk of the operation. To put down a sick animal. Within this space, Anastasia has fought to acquire the vast knowledge and skills necessary to survive: marketing, agronomy, lease writing, computer skills, accounting, and animal husbandry.
Just a quarter mile down the road from Anastasia lives Jo Geerdes, age 79. When Jo and her late husband, George, moved to Elfrida in 1977, their four sons were school-aged and wild. The transition from the midwest to the desert was shocking.
Suddenly, the roads were not held in by trees. They learned to watch for rattlesnakes. They could see dust storms and monsoons from miles away. At first they grew hay. But three years after the move, they erected a metal building and opened George’s Custom Meat Processing, becoming the area’s go-to family-owned slaughter and custom butcher shop.
In the past few years since George died, Jo and Anastasia have cultivated a close friendship necessitated by living on the range alone as women. They look out for one another. They butcher turkeys and hogs together. When Anastasia had to attend a wedding in New York, Jo hemmed the bottom of a $9 thrift-store evening gown. It was gold and gorgeous, Jo says, clasping a hand to her chest. “Ana looked so beautiful.”
Agricultural apprenticeships are regarded as one of the most important and effective ways to transfer knowledge, skills, and land to new generations of farmers. Because it is estimated that 70% of farmland will change hands in the next two decades, it has become more urgent than ever to connect young farmers with retiring farmers in order to keep land in agricultural production.
Here in Cochise County, temperatures spike to 110 degrees in the middle of June. The long growing season supports extra plantings of cotton and alfalfa, and hay dries quickly once it’s been cut.
Nuts grow well here, too – heat-loving pistachios, almonds, and pecans. But these crops are particularly thirsty, and they pose an interesting resource issue for Arizonans.
Anyone who lives here knows you don’t buy land in Arizona – you buy water. That water is quickly being bought by housing speculators: mega-billionaires looking for agricultural tax write-offs, and almond and pistachio farmers flocking from drought-stricken California.
Even foreign agricultural companies have begun to appear. Perhaps the most shocking example is the Saudi dairy company that purchased 17 miles of Arizona desert for alfalfa production, only to ship the alfalfa back across the ocean for feed.
Amid this frantic land grab, small-scale farmers and ranchers like Anastasia and Jo face an uncertain future. With the additional demand on groundwater imposed by outsiders, the aquifers are being depleted at nearly double the rate they once were, which has experts wondering how many more years of commercial agriculture Arizona can support.
As wells are beginning to go dry, farmers are left with two options: spend tens of thousands of dollars to drill deeper – or get out now.
Source
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Xdaunt is correct that there isn’t a venue for them to raise the claim at this point. But also this is something that should be raised by the attorney representing the specific person charged, rather than the vaguely assigned campaign counsel. Beyond a naked attempt to discredit the investigation, I don’t see many people legal world saying this has any merit.
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EPT
