Here's the court in a section of its decision intended to offer comfort to privacy advocates: "Our holding today does not mean that we do not appreciate Facebook's concerns about the scope of the bulk warrants issue here or about the District Attorney's alleged right to indefinitely retain the seized accounts of the uncharged Facebook users."
The decision continued: "Facebook users share more intimate personal information through their Facebook accounts than may be revealed through rummaging about one's home. These bulk warrants demanded all communications in 24 broad categories from the 381 targeted accounts. Yet, of the 381 targeted Facebook user accounts only 62 were actually charged with any crime." As if to underscore that point, the decision added in a footnote: "A total of 134 people were indicted in this investigation. Sixty-two of those individuals were from the 381 targeted Facebook users. Thus, 319 targeted Facebook users were not indicted."
So the appellate panel justified its decision -- in effect arguing that the system works -- by noting that 134 people were probed and not subsequently charged. To my mind, though, that's better evidence that the system is not working. Now add that bit about indefinite data retention, and George Orwell would be quite proud indeed.
On a more rational note, that federal appellate panel found that an accidentally dialed phone call -- and anything that is heard as a result -- is fair game. To me, the difference relates to actions, passive or active. In this case, a woman received a phone call from an executive and repeatedly said "Hello" and tried to get the executive's attention.
The executive admitted that he had made other accidental calls and never bothered to use a phone password or any other means to prevent more accidental calls. The court had no sympathy.
"Exposure need not be deliberate and instead can be the inadvertent product of neglect," the panel ruled. "Under the plain-view doctrine, if a homeowner neglects to cover a window with drapes, he would lose his reasonable expectation of privacy with respect to a viewer looking into the window from outside of his property."
Hence, whether it's an accidental pocket-dial or a deliberate social media post, courts are concluding: You say it, we can use it. Consider yourself warned.
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