Privacy

Dolly Mapp was a formidable woman. When the cops of Cleveland Ohio arrived at her door, in the early 1960’s or thereabouts, seeking a person in her house, she declined to allow them entry. They called in reinforcements (what a woman!). They searched her house and found pornographic material. She was convicted, lost on appeal and won in the US Supreme court [Mapp v Ohio 367 US 643; S.Ct. 1684]. The cops had searched without a warrant. Dolly had been convicted under the law of Ohio. The US constitution [14^th Amendment] protected a citizen from unreasonable search and seizure and in 1914 the US Supreme court had ruled evidence obtained in breach of the constitution could not be relied on in a Federal prosecution. Mapp v Ohio decided that that position also applied to State prosecutions. (Most criminal prosecutions were under State law, so most defendants had been left without the protection of the constitution until Mapp).

In or about 1986, on a tip-off, police in California flew an aeroplane over the backyard of Mr. Ciraolo. They perceived a crop of marijuana in his yard, got a search warrant and found 73 plants. The California court of appeals applied Katz v United States 389 U.S. 347 and ruled the flight an unauthorised search and a breach of Mr. Ciraolo’s expectation of privacy. The US Supreme court found against Ciraolo on the grounds that he had lost his right of expectation of privacy because he had exposed the back yard to the occupants of the numerous aeroplanes flying over his house. The court disregarded the fact that those occupants were passengers in domestic flights (at great heights, presumably) whose chances of inspecting and recognising marijuana in the backyard were nil.

One wonders what the US court will say when the cops buy and deploy drone aircraft and thermal imaging technology.

Then there are those special places like Birr, County Offaly where, recently, the 41^st Irish Hot-Air Balloon competition took place.  Will the Garda Síochána buy a balloon or opt for a drone?

The Gardaí have had a history of their own difficulties with search warrants and the like. See HERE for the latest episode on that front and for a very good analysis of the case law relating to that history.

Ireland has strange Regulators, as we have learned. For example, what is the Irish Data Protection Commissioner doing about the Google “Street View” scandal?

The scandal involved the deliberate collection, by Google, of wi-fi data, through its Street View vehicles. Google Street View is part of Google Maps and Google Earth. It uses adapted vehicles (mostly cars) to travel through public locations in at least thirty countries in the world. The vehicles have cameras to record a 360 degree view of each location.

I saw one in Dublin in August.

While it was using the vehicles as a camera platform, Google also used them to secretly collect data passing over wireless networks. That data would be all, or part, of emails, passwords, videos, audio files, documents and network names.

Seemingly, German privacy authorities discovered this Google secret early in 2010 and launched an investigation. A proper investigation would require that the evidence be preserved, would it not? Here’s what Google put up on its website:

“On Friday May 14 the Irish Data Protection Authority asked us to delete the payload data we collected in error in Ireland. We can confirm that all data identified as being from Ireland was deleted over the weekend in the presence of an independent third party. We are reaching out to Data Protection Authorities in the other relevant countries about how to dispose of the remaining data as quickly as possible.”

This was more than the Data Protection Commissioner told us. In fact he told us nothing of the issue. HERE‘s his website.

Google’s reference to the data being “…collected in error…” was disingenuous. The data was collected calculatedly.

Bank robbery is irresistible if the only sanction is that you have to give the money back if you are caught.

Did we actually get our money back?

The UK mobile phone operator T-Mobile has reported the theft of its customers’ personal information. T-Mobile (and the UK Information Commissioner) say the employee(s) received substantial payments for the information.

If this happened in Ireland the employee would be guilty of an offence under The Public Bodies Corrupt Practices Act 1889, as extended by The Prevention of Corruption Act 1916.

The payment is a bribe.

Ireland and Slovakia sent their Justice ministers to the Council of Ministers. Each Minister cast a veto on a vote to introduce Directive 2006/24/EC.

Neither Minister noticed, as Advocate-General Bot now says, that he was attending a Community institution, as opposed to a Union institution.

Each had, of course, read the draft Directive (presumably) and there they saw it was replete with material proper to the Union (and not the Community). It was, in short all about “police and judicial cooperation in criminal matters”. It was expressly proposed by Charles Clarke in the light of the London bombings.
Terrorism, no less.
No common market in terrorism, then.
Right, definitely a matter for Title VI of the EU Treaty.
No, said the Commission Staff. It’s all about a level playing field in the world of commerce.

Ireland and Slovakia have a vote, but not a veto. Done and dusted, then.

What-ho, Advocate-General Bot says the same.

In fact, Directive 2006/24/EC is all about facilitating surveillance by Member governments through the telecoms system. It places a burden on the telecoms and that burden has a cost. But any police activity has a cost, and nobody has yet tried to argue that the cost of a social issue renders it an economic issue.

Bot and the Commission define things by their form, not their substance.

A small state in the EU has no veto if the Commission wishes to deny it a veto.

An institution that loses integrity is a lost cause. When the current Commission is gone from office matters like this will surface and destroy its successor.

The Hollywood police have a perennial problem and must have long ago found the solution. Suppose Cary Grant had got drunk and stabbed his neighbour. Should the police arrest Cary Grant? But that was not his name. His name was Archibald Leach.

Who has committed the crime? Archibald or Cary?

In DPP v Thomas [2006] IEHC the High Court pointed out that, (like Cary Grant), the defendant had chosen to be known by a name other than his real name. Therefore, summonses issued against him in his false name were validly issued and were in time.

What of Kirk Douglas? He changed his name legally to Kirk Douglas, from Issur Danielovitch. (Presumably by deed poll). Has the ground become more certain in his case? Perhaps he does not have a double identity any longer?

In fact, for persons, unlike inanimate things or concepts, double identity is not the usual problem in law; it is the theft of identity. For inanimate things, in law, double identity is common; “public place�?, for instance, may have a different meaning in one piece of legislation compared to another.

Identity is not a simple thing. John Locke is credited with the first formulation of identity, in An Essay Concerning Human Understanding (1689), by reference to consciousness rather than the substance of soul or body.

For him, consciousness was memory. This has practical limitations. What of a person suffering from memory loss? If memory defines consciousness, which defines identity, how can we speak of “a person�? as suffering memory loss? (This memory loss is different to the memory loss encountered by the Flood/Mahon Tribunal).

More seriously, he denies that identity is related to the body. A body may change and we accept the person has not. A body may have a particular appearance and not reflect the identity of the person. (“Trading Places�? is based on this idea).

Possibly, identity is not coincidental with the person. A person may have several “identities�?. Some commentators deny that “identity theft�? is possible. In their view, what happens is the deception of a person or persons other than the person whose “identity�? was stolen.

In Wicklow County Council v. Fenton & Ors [2002] IEHC 102 (31 July 2002) the High Court likened the owner of an illegal dump to a receiver of stolen property. Without a receiver there can be no profit in theft; without an illegal dump there can be no illegal dumping. The court accepted the principle advanced by the applicant Council that it did not have to prove negligence; that the state of mind of the Respondents was not required to be proved. The court endorsed the principle of “the polluter pays�?, a principle found in Council Recommendation 75/436Euratom and specifically incorporated in Section 5 of the Waste Management Act 1996.

“the polluter pays principle” means the principle set out in Council Recommendation 75/436/Euratom, ECSC, EEC of 3 March, 1975 1 regarding cost allocation and action by public authorities on environmental matters;

Under Section 26 of the Waste Management Act 1996 the Environmental Protection Agency is obliged to incorporate the “polluter pays�? principle into its national hazardous waste management plan.

The court found that the Respondents had been negligent on the facts and made orders for the remediation of the lands on which the illegal dump was found.

Consequently, liability under the Waste Management Act 1996 can be established simply by showing that there has been dumping on lands and that there is no authority for such dumping. The liability attaches to the occupier of the land; there is no need to show that the dumping took place during the period of occupation by that occupier.

The title to this post is incorrect. The concept of war crime shows this. I have written elsewhere that legal proceedings are not a search for truth. Nevertheless, in legal proceedings, as in war, there are limits to restrain the parties.

The Supreme Court marked its disapproval of failures by lawyers for the Defendant in Philp v Ryan and Bon Secours [2004] IESC. The court found that the 1st Defendant had altered his clinical notes. As altered, they appeared to show that the Plaintiff was to have a PSA test in 6 weeks. In fact no provision was made for such a test. The Plaintiff, who was suffering from prostate cancer, was misdiagnosed by the 1st Defendant. Eight months later the Plaintiff discovered the misdiagnosis and issued proceedings pleading that his life expectancy was reduced due to the Defendants’ negligence.

The 1st Defendant misled his lawyers and medical advisors. Consequently the Defendants’ defence was to the effect that the Plaintiff was responsible for the loss of eight months treatment and not the 1st Defendant.

Almost on the eve of the proceedings commencing, the 1st Defendant informed his lawyers what he had done. They did not correct the wrong impression and understanding of the Plaintiff’s lawyers as to the defence the Defendants intended to mount. The lawyers for the 1st Defendant continued to represent, in the manner in which the defence was presented, that the Plaintiff had been advised to have a PSA test and had failed to do so. The Supreme Court found that there was at least a suspicion that there was a deliberate attempt to keep the true facts from the [High] court.

Consequently the Court awarded aggravated damages to the Plaintiff, increasing the High Court award from €45,000 to €100,000.

There is good reason to say that Governments have little concern about the protection of personal data, as previously posted HERE.

In a similar critical mind, the House of Lords has proposed, as reported HERE, the criminalization of abuse or recklessness with respect to personal data.

The problem is considerable even at the level of mere carelessness as seen HERE.
An equally serious problem is abuse by State agencies and quangos; an example HERE.

As can be seen from the terms of the Regulation of Investigatory Powers Act 2000, to treat dog fouling or the like as a suitable cause to authorize surveillance is to act disproportionably to minor problems such as, well, dog fouling.

A zealot is never a reasonable person and seems capable even of shooting-oneself-in-the-foot behaviour, as seen HERE.

Luckily for bookmakers, probability is not reliably intuitive. What is the value of a random drug test? (No account is taken here of the legality or morality of the testing).

Possibly not much. See Example 2 HERE.

The Wikipedia writer concludes that, even with the positive result for a test 99% sensitive and 99% specific, it is still more likely that the person tested and testing positive, is not a drug user than that he/she is a drug user.

The reason lies in the context of the drug testing. It occurs as a random test where the likelihood of encountering a drug user is known and is, in the example, .5%. So, a positive result even for a test as accurate as the postulated test is not affirmative, even probably, of drug use.

Hmm, what is .5% of a Cabinet?

Barack Obama is a US citizen. This can be inferred from the fact that he is a candidate for nomination to run for President and, now, information that he applied for, and presumably got, a US passport (he is not from US Samoa).

The power to grant that passport lies with the US Government. That power connotes the power to keep the applicant’s personal details on file. That file, it can be inferred, is electronic. This can be inferred because the evidence that the file was accessed, and accessed unlawfully, consists of the IT record generated by each access. A person accessing the record must use a personal login code.

Unlawful access is no big deal.

This can be inferred from the fact that, although there are criminal penalties for wrongful access of records, nobody is being prosecuted for the wrongful accessing of Barack Obama’s file. The applicable legislation is the Privacy Act 1974.

The relaxed attitude to the accessing of his file may be accounted for in several ways; firstly, the accessing was done under authority; secondly, anyway, as is known, the passport itself is not secure. (The modern US passport is biometric and contains an RFID chip. The chip can be read at a distance. The passport is supposedly shielded to prevent this but it is doubtful if it is effective.) Thirdly, so what? What is he complaining about? What can be in his passport file that he is anxious to hide?

I suggest the true reason is very deep; candidate or no, Barack Obama is, essentially, on the wrong side of an asymmetric relationship. The State has and owns the information it took from him and feels no obligation to him for that. In short, the Privacy Act 1974, like all such provisions anywhere, is a sop.

(As I have maintained HERE, the “State” is an abstraction. Its wrongful acts are the acts of its agents who should always be made answerable for those acts.)

In Ireland the equivalent provisions are found in the Data Protection Act 1988 and the Data Protection (Amendment) Act 2003. The latter was passed supposedly to transpose the provisions of Directive 95/46/EC.

These provisions are toothless. Essentially, they provide for the establishment of a regulator, the Data Protection Commissioner. If he (it has always been a he) receives a complaint he may investigate it. He is not obliged to prosecute an offender.

He may not have the resources to prosecute; he is, generally, dependent on the Government for resources. At least once in the recent past those resources dried up to almost nothing. (Arguably, the Commissioner is of a category of regulator as the Information Commissioner, but without the independence she has. The Government has been resolute in whittling away at her authority, mainly through the provisions of the Freedom of Information (Amendment) Act 2003)).

If Barack Obama were to lodge his complaint with the Irish Data Protection Commissioner there is every reason to expect he would be met by a Michael Mukasey response;

I don’t want to speculate but if somebody walked in here with a box full of evidence, they wouldn’t be turned away.”

Tea and sympathy?