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Old 2010-07-17, 21:38   Link #35
AS Oji-kun
Join Date: Nov 2006
Location: Hokkaido
Age: 69
Originally Posted by Kaijo View Post
That's pretty much the point. We don't know, and odds are, we'll never know. Doesn't that scare you at all? That the government can come along and just shut something down without having any sort of transparent process that can be evaluated?
We have such a process already. It's called a warrant. I doubt very much that an ISP would turn over a server to the authorities without one. Doing so would, at a minimum, put the ISP at risk of being sued by the server's owner or lessor. I don't like the fact that the ISP can be subject to a gag order in some cases, but that's the result of a statute that can be overturned.

The whole point of having a constitution and a government bound by law, is that we shouldn't *have* to take extra steps to protect rights we should already have.
Most "rights" are not absolute. For instance, if you're stopped while driving an automobile, and the cops find your stash in the trunk, you don't have the same constitutional protections as you would have if the stash were sitting in your desk drawer at home. That's been established law for years now when it comes to the driver and was recently extended (unanimously) to cover the passengers as well. There's a whole line of similar cases concerning roadblocks to identify drunken drivers. The Court held in 1990 that such practices do not contravene the Fourth Amendment.

Moreover, we have a well-established "transparent" procedure to change such rulings if enough people feel their rights are being trampled upon. Congress could make it unlawful to apply different standards to searches of vehicles than we apply to searches of persons. If Congress doesn't seem willing to act, there's always the procedure of amending the Constitution. Obviously neither of these methods is easy or quick, but that's the way it's been for over two centuries now.

Granted, in practice, you do have to take steps to protect yourself because there are always those who want more power over you. But your rights are exactly that; something that can't be taken away and should never be trampled upon.
You seem to believe there are never any circumstances where it might be reasonable to assert a public interest that overrides your private "right." I disagree. For instance, I think the public has an interest in collective security. Your "right" to personal privacy while driving in a state of intoxication puts me at risk of death. Do you really want to argue that the police should never be able to stop you, test to see if you're driving drunk, and arrest you in cases where there evidence (aka "probable cause") to believe you pose a risk to the drivers around you? I have a friend who just recently defended someone on a drunken-driving charge. The crux of the defense was whether the defendant's behavior was sufficiently egregious to constitute "probable cause." That's a pretty common issue in a lot of drunken-driving cases.

The Fourth Amendment reads "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." There are some significant "weasel" words in this, like "unreasonable" and "probable cause." How about a case where you have two sets of books and base your tax filings on just one of them, while keeping the real information hidden? Should we consider it "unreasonable" to permit the government to seize that second set of accounts as part of an investigation into tax fraud? People who view all taxation as confiscatory would answer yes; the rest of us would probably agree that seizing the hidden records is justifiable.

I think you seriously underestimate the extent to which this kind of balancing of rights takes place within our legal system. Courts and legislatures have been dealing with these issues for decades and even centuries. There's an elaborately articulated structure of laws and judicial opinions concerning when rights might need to be limited for some broader public good. The Bill of Rights puts the onus on those advocating the limitations in these cases; that's why they are called "rights." I don't see some vast power-hungry conspiracy at work here, for there are lots of people who take seriously the task of protecting our rights when the government oversteps its bounds. Here's an example from just a few days ago. You may think (as do I) that in our current historical moment the state has more power than it should, but that's a question of balance that often takes years to resolve.

They could straight to the lessor and ask him. Show up with a warrant and/or court order and ask for registration information.
What if the authorities believe the lessor is a party to the criminal conduct? Perhaps the judge was convinced that this approach had the potential to lead to the destruction of evidence so he or she agreed to let the authorities impound the server? Maybe one of those accounts belonged to a Russian spy?

I'm not saying that there aren't compliant or thoughtless judges; of course there are. "Shopping" for a compliant judge is a common practice in law enforcement. Still we have methods to control for that in the long term; that's what the appeals process is for. Maybe the government overreached in this specific case, maybe not. If they did, there are plenty of attorneys who'd be happy to help, and some of them might do it for nothing. I'd be surprised if Mr. Blog-Hoster, or one of the 73,000 bloggers, can't find someone at the EFF or the ACLU who would be interested in discussing this case. Considering the amount of hoopla it has generated in recent days, I suspect someone might have contacted him, or BurstNET, already.
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