We know you love privacy, Judge Posner. We just wish you'd share


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There are times when one has no expectation of privacy. That’s an established legal principle. If that applied to anybody, it would be a cop on the beat. They may deserve privacy when they’re on the can, but that’s about it. (Also that judge who asserted his privacy right from the bench.)

Posner thinks private citizens have no expectation of privacy in their private communications, but police should expect privacy while cracking heads performing their duties? That’s exactly backwards.


I believe Posner is completely and utterly wrong. However, to me he comes off less like a hypocrite and more like your garden-variety fool. His POV is consistent, even though his wording isn’t. His side=good and honorable, our side=not so much. Pretty basic tribal thinking. Backward and more than a little scary, but not that unusual. Lots of “our side=good, their side=not so much” around here recently. Just as backward, scary, and foolish.

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He could be less foolish and more evil.

The position that one class of people (who would never abuse their position; because they are the good guys and say that they wouldn’t) deserve both privacy and the means to violate that of everyone else ‘when necessary’ is hardly internally inconsistent, just highly problematic.

Doddering old fool whose best legal years are long behind him shouldn’t be excluded, of course; but not everyone with terrible plans is just confused.

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I’m not going to defend him on this issue, by any means, but will point out that people who throw around phrases like “Doddering old fool whose best legal years are long behind him” could look a tiny bit deeper into what other opinions this judge has recently put forth.


I concur with the assessments above on tribalism–his tribe is the US Criminal Justice System. Anything that impedes what the justice system wants, he tosses. Cops having to justify bad behavior? Toss it. Citizens (read: criminal defendants) with hard-to-get-at phone data? Toss it. Judges having to justify how they invest money? Toss it.

Very much a “privacy for me, but not for thee” mindset.

His other rulings, from outside the scope of the criminal justice system, have no bearing on this discussion.

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Is that what he said? That they have no expectation of privacy?

Or is he saying that just as we can tap phone lines (where there is an expectation of privacy) with a warrant, or search private areas and documents with a warrant, we should also be technologically able to access digital data?

Care to cite anything in support of this broad hypothesis?

I think most commentators would agree that almost all aspects of Posner’s jurisprudence are informed by economics, in which case his rulings from outside the criminal justice system are entirely relevant.

Privacy interests should really have very little weight when you’re talking about national security.

Not precicely the same words, but yes.

I don’t get “there’s no reasonable expectation of privacy” from him saying that privacy has relatively little weight compared to national security. His weighting of these interests would seem to come into play only when a national security has been established (such as during a warrant application) as opposed to a blanket statement about there being no expectation of privacy even in situations where national security is not implicated.

There’s nothing hypocritical or inconsistent about his position.

a) Subject to full legal protections (ie warrants) the government should have the ability to obtain any information it wishes from an electronic device.

b) Individuals still deserve a certain degree of privacy from the public, I’m certain most people here would object to someone pointing a camera at them with the objective of catching them doing something wrong and exposing them to the full fury of the Internet.

I still don’t agree with Posner, but we can’t pretend every police recording will further the goal of justice. Undoubtedly there’s going to be video of good cops doing exactly the right thing but being filmed in a way that looks very guilty. And those people, despite being innocent and doing the right thing, are going to end up ostracised and drawing the ire of the Internet. That is a definite concern and I suspect what Posner was talking about.

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