Monthly Archives: March 2012
Privacy is one thing that most citizens of the United States take for granted. After all, the right to privacy is in the Constitution, isn’t it? Would you be surprised to hear the answer is, “No”? It is, in fact, not enumerated anywhere in the Constitution. While we do enjoy the various rights to free speech and freedom from warrantless searches or seizures of property without due process, the right to privacy has been more of an inference than an absolute right. Most knowledgeable people refer to an expectation of privacy, which is more accurate, rather than an absolute right. With today’s technology, where everyone is on Facebook and we wouldn’t dare leave home without a GPS (or a wife unafraid to ask for directions), it is unsurprisingly, becoming a problem for law enforcement and other government agencies who have embraced the freedom of technology without necessarily vetting the legalities of its use. Two recent articles are prime examples of where the government has overstepped its bounds in utilizing technology.
National Public Radio recently ran a story on the FBI overstepping its authority in using GPS tracking devices without bothering to get a warrant. In the issue before the court in U.S. v. Jones the FBI attached a GPS tracking device to a vehicle of a suspected drug dealer in an effort to track his whereabouts. The idea was that the GPS tracker would better be able to track the stops and whereabouts of the vehicle than a surveillance team and at a lesser cost. Jones was arrested, based largely on the data provided by the GPS, and was sentenced to life in prison.
He appealed the decision to the DC Appeals Court (Jones was arrested in Washington D.C.) saying the tracker violated the Fourth Amendment against warrantless search and seizure. His conviction was overturned by the higher court saying that the police action was a search because it violated Jones’ reasonable expectation of privacy (so, that’s where that privacy clause is). The issue was appealed to the Supreme Court who agreed to hear the case.
In arguments before the Supreme Court, the Solicitor General said that, once a person comes out onto a public road, they should have no reasonable expectation of privacy. He attempted to equate the use of GPS with that of a “beeper” another device used to track vehicles from a short distance. The court did not buy the arguments, saying that a beeper still took a “lot of work” where a GPS allowed police to sit in the station and push a button whenever they wanted to find out where the suspect was. The appellate ruling was unanimously upheld, but it is interesting to note that there were two concurring opinions with different reasoning.
The scary part about this is, when the ruling came down, the FBI had about 3,000 GPS tracking devices in the field. Although government lawyers scrambled to obtain warrants to continue using the devices, they still had about 250 that needed to be turned off. FBI Director Rober Mueller, in testifying before the House Appropriations Committee said:
It will inhibit our ability to use this in a number of surveillances where it has been tremendously beneficial,” Mueller said. “We have a number of people in the United States whom we could not indict, there is not probable cause to indict them or to arrest them who present a threat of terrorism. … [They] may be up on the Internet, may have purchased a gun, but have taken no particular steps to take a terrorist act.
Unbelievable that this is what our government has come down to. Essentially, what Mueller said was, ‘We have lots of people who we think might do something bad. We have no reason to believe it, other than we just know in our hearts they are bad guys and we need to violate the Constitution to catch them. Oh, and too bad if we violate the privacy of a few million citizens. That’ the price of security’.
Fortunately, the Supreme Court saw it differently and upheld the Appellate Court decision. Andrew Weissmann, the top FBI attorney, said the court is making a distinction between using people to conduct surveillance and using machines. Rightly so, as the human element can determine whether there is really probable cause. The use of technology to conduct surveillance allows people to become lazy in casting a wide net at the hope of catching the relatively few real evil-doers in our society.
Weissman also said that FBI agents need clear rules (duh) but that obtaining a warrant is not always possible as it “requires probable cause to be shown”. Again, an absolutely absurd statement made by a top law enforcement official that should set off the alarm of every citizen of this country. Since when should the FBI or any law enforcement agency for that matter be conducting surveillance on citizens of this country without having probable cause? Aren’t the precepts of our Nation, our very Constitution itself, based on these basic rights that distinguish us from the rest of the world?
But the response from the government gets even more absurd. “The decision is reverberating very quickly into areas that I’m sure lots of you care about: national security, cybersecurity,
privacy, more generally,” said Solicitor General Don Verrilli at a recent Georgetown University Law Center conference. Issues over cellphone data, pre-installed GPS (think OnStar) and public security cameras will certainly be up for discussion, if they haven’t come up already.
But the issue of privacy comes much closer to home. In a recent story published by the Sacramento Bee, a juror’s privacy rights regarding his Facebook account have come under the judicial microscope. From the Sac Bee story:
There’s no such thing as “compelled consent” when it comes to a juror’s privacy rights, but if a court finds good cause to believe the panelist was biased in his deliberations, it has every authority to kick over the rock “to see what’s there.”
Those were the competing arguments Friday when lawyers faced off before the state’s 3rdof Appeal over whether a juror must allow Facebook to turn over to a judge the thoughts he posted about an ongoing Sacramento criminal trial.
Two of the justices hearing the case have indicated they would require the juror to turn over pages of his Facebook account where he published his thoughts on a criminal trial he sat on. According to one of the justices, the writings violate the admonition by the trial court judge not to discuss the case with anyone. The issue revolves around the juror, known in court documents only as “Juror No. 1”, was prejudiced in sitting on the case. The defense lawyer, of course, said, yes.
Was there an expectation of privacy by the juror? Anyone who has a Facebook account knows that they thrive on public access. In fact, a chief complaint of Facebook has always been that they essentially break privacy of their users when introducing new features and this requires users who wish to keep things more within their circle to adjust their privacy settings. In fact, it has become almost a game of sorts and has even generated Facebook programs, or apps as they are called, that will notify a user when his or her privacy controls have been changed.
After hearing that Juror No. 1 had posted his impressions of the trial on his Facebook page, the defense attorney attempted to subpoena Facebook access to the juror’s page. Surprisingly, Facebook successfully fought the subpoena on the grounds that forced disclosure would violate the Federal Stored Communication Act that protects the privacy of internet users. In reply, the defense countered the Act violated due process for their client.
In a hearing, the Sacramento trial judge, Michael Kenny said the act permits Facebook to turn the postings over to the court if it has the user’s permission. Then, what could only be called an act of absurdity, he ordered Juror No. 1 to grant permission. Fortunately, the judge appeared to be looking as much for guidance and appointed a lawyer to represent the juror. That lawyer immediately sought to overturn the judges order, arguing that only investigative agencies can get postings and “there isn’t an ongoing criminal investigation with respect to my client.” He characterized as “legal fiction” the notion that a judge could force his client to give up the postings through “compelled consent.” Essentially, he said, the court does not have the legal standing to bring charges against someone for a perceived crime.
It is important to note that Juror No. 1 did produce five pages of his Facebook page that, as the lawyer put it, produced “no smoking gun”. Taking this any further, he said, amounted to a fishing expedtition.
We couldn’t agree more. But these cases are perfect examples of how the government has decided to error on the side of government security rather than its people. Other issues now involve government employers who are requiring potential employees to turn over their Facebook passwords so that employers can “troll through” their employees’ accounts. Senator Charles Schumer (D-NY) and Senator Richard Blumenthal (D-Conn) are leading the charge against this practice. “You shouldn’t be required to give up your private life just to get a job.” Schumer further states the practice may break anti-discrimination laws because it may yield information about a prospective employees private life regarding religion, marital status, and other things that it is illegal for an employer to inquire about.
It is fortunate that the ACLU sued the State of Maryland on behalf of an applicant and the state has changed its policies (although they still ask you to voluntarily give up your password). All of these cases demonstrate the government is becoming less like the Republic our forefathers founded and more like the Big Brother of George Orwell’s “1984”.
And, should you think it stops at the statehouse, don’t forget that, until recently, nearly every political body that met in public required public speakers to identify themselves and where they lived. Even recently, we found our own city planning commission violating the rights by inferring that speakers had to “fill out a speaker card”. At a recent commission meeting in fact, I spoke on behalf of a permit applicant. Although I freely gave my name to the commission, I also told them that their practice is illegal and that I only identified myself as I wanted each of them to know who I was as a blogger. Oh, and I didn’t fill out the speaker card. Nonetheless, I’m sure they have my number.
With all of the fireworks lately, it was refreshing to see the City Council take another step toward revitalizing the Old Town area of the city. At last week’s meeting, the council had a first reading of an ordinance that would update the Old Town parking study by allowing developers in the area to pay a yearly maintenance fee in lieu of providing actual parking spaces for their projects. Under the current plan, a developer must either provide adequate parking, lease surplus parking from another business or pay a one-time in-lieu fee that amounts to about $18,000 per parking space. It is pretty obvious that this fee, when added to all the other costs to develop a project in any city in California, is a serious detriment to starting a project.
The proposed ordinance would allow people developing projects to pay a yearly maintenance fee per space. Although it has not been absolutely established, the staff tossed out a nominal $60 per space per year fee in lieu of providing actual parking. This would allow the business to use established street and public parking while providing the city with a cost recovery vehicle for maintenance of public parking spaces. This sounds like a win-win situation to us and hope that this can be completed without a hitch.
Speaking of fireworks, Jerry was up to his old self again. His usual opponent, or should we say victim, was present as he began to assail Councilmember Deborah Gavello for having the audacity to question issues regarding the construction project at Jamboree and the I-5. Gavello had brought an agreement that she became aware of between the city of Irvine and the TCA to the attention of staff and the City Council. Of course Jerry, being on the TCA Board touted the greatness of what they are doing and how wonderful the TCA has been in working with everyone to get this construction done. Ohhh….. Did I mention Jerry sits on that board and receives $120 per meeting and can actually receive up to $8,640 per year plus mileage?
Councilmember Gavello asked a few questions about what it was going to take to get the construction completed. Her concern was because the agreement she noted was for very specific times that the toll road would have free tolls for the locals to use when the construction area is completely shut down and there is no other viable route through the area. John Nielsen chimed in before Amante attempted to negate Gavello by saying how kumbaya we are with all of our neighboring cities and how infrastructure takes so much time.
But, when, Gavello pointed out that she was the one who made staff aware of the agreement, they were unaware of it beforehand or the other issues she had brought up, Amante had to be heard again as he said, “One of the far, too many infrequent benefits of having you actually attend a meeting.” And, while Gavello’s absence is notable from meetings, this kind of attack is the standard of a petty little former mayor, who cannot see past his own selfish needs. But, the little man was just getting started.
During regular business, the first reading of the ordinance I mentioned above on parking in Old Town was heard. Binsack gave a good presentation on the issue and how the other improvements in the area have done much to make the area more attractive to business. She noted that the public parking in the area is underutilized and that adding parking to buildings in Old Town is difficult at best. She also pointed out that the current alternatives were expensive and are a further detriment to building in Old Town. All of the Council comments on the ordinance were complementary as well. As we said, it is a win-win.
Now, I admit it was kind of strange that Deborah asked how Old Town Orange and Downtown Fullerton both handle parking issues. Neither has the compactness of Old Town Tustin and both have plenty of public parking. it is pretty obvious we would be comparing apples to oranges. Nonetheless, Elizabeth Binsack did answer her questions and state that the staff actually did do some checking around. Our Mayor, John Nielsen, in a rare change from his usual alignment with Hizzoner, even answered Gavello in a cordial manner befitting the Mayor of Tustin as he pointed out the obvious differences in the various old towns.
Deborah went on that she wanted to make sure the city would not come up with a fee structure that would have to be constantly revised, particularly since they were moving to a yearly cost recovery fee from a one-time in-lieu fee. Her mistake was when she said she learned about this last week in a meeting with the City Manager (even though, as she pointed out, she didn’t call the meeting and Councilmember Gomez was there). So, Jerry decides to go on the attack by interrupting Gavello (who still had the floor under Roberts Rules) saying that it is difficult for him to hear that she has been on the council for three years and she is just now hearing about parking in Old Town. As Gavello pointed out she still had the floor and wasn’t done, Mayor Nielsen did something remarkable; he stopped the bickering and brought order to the meeting. Unfortunately, he then allowed Hizzoner to continue his attack on another councilmember. It was a nice try, John, but you need to man-up in regard to Hizzoner’s petty attacks.
And, then Jerry babbled on about Gavello’s babbling, calling her discussion “just plain babble. And it’s babble without foundation. Everyone knows we don’t have a pressing parking need in Old
Town but that we have code requirements…” You should know, Jer. Along with your talking head, Elizabeth Binsack, you have been instrumental in suppressing any beneficial change in Old Town that did not have your personal stamp of approval on it or that the other councilmembers thought better of.
Jerry, of course, went on to reiterate that he knows she only sporadically attends council meetings (her actual record, while the worst of the councilmembers, would be difficult to characterize as sporadic) but it isn’t important to know what other cities are doing in this regard. Really, Jerry? I would think that it is very important. Staff spend a lot of time, in fact, making those comparisons so that we neither short-change ourselves nor set fees at an inordinate rate. That is a common practice. Jerry finished his rant by saying, “…and despite the fact the councilman wants air time so she can sound intelligent, she’s babbling bout things she ought to know better about.” Wow. So, what would you say to that?
Well, Deborah shot back with, “For you to say that I babble, anyone who’s watched you since you’ve been on the council for seven years have had it and looks forward to when you’re off the council because the meetings will be much shorter.” Truer words were never spoken.
I could, of course, go on about how badly Jerry Amante attempted to attack Deborah Gavello over issues that should not have come up. But, I think you get the idea. The rest of the meeting went pretty smoothly until council comments came up and then Amante had to attempt another attack. It’s just too bad that Gavello was up before Amante as this allowed him to get the last word in which, of course, was about Gavello. One thing I know is that Jerry knows what he is talking about when he complains about babbling. He is the king of babblers in Orange County. If you don’t believe me, just listen to his Councilmember Comments at the 1:45 mark as he laments again about how Gavello doesn’t attend meetings. He asked Nielsen to bring an agenda item and Nielsen did ask the city manager to handle that. Good luck on that one.
It should be a pretty quick meeting of the Planning Commission tonight. The only item on the Regular Business Calendar is the approval of a Design Review of a new building located at 195 El Camino Real, in Old Town Tustin. If this sounds vaguely familiar, the new construction will be where the old Dry Cleaners were located across from Old Town Tustin Eyecare and just down the street from the Acorn Naturalists.
The new building will be a two story, 3,500 square foot building that will house a jewelry store and a coffee shop. I got a sneak preview of the plans, recently, and I think the building’s architect did a great job of fitting new into old. And, while there may be some changes here or there, mostly staff suggestions to make the building more amenable to Old Town, I suspect they will be minor in nature and the overall design will be virtually as I have seen. Now, the only issue is, do we need another coffee shop in Old Town Tustin?
I am a coffee fanatic and believe you can never have enough variety. I enjoy Kean’s and my daughter swears by Free Soul Cafe, although she complains they changed their hours so she has no place to stop in the morning. Having another locale to quaff coffee (yeah, yeah, I know….Starbucks) is always high on my list. Of course, what we really need is a full blown old time cafe. I can hope, but I doubt that the square footage will allow for much more than a counter and brewing area. Maybe we can talk Mr. Del Rio into forgetting about the jewelry store and opening an old town cafe instead.
One of the largest hurdles for the project, however, has been that of parking. According to the staff report, the building would require 13 parking spaces. However, the plans provide for only 3. The other 10 parking spaces could be had by paying an in-lieu fee of about $18,000 per space. Fortunately, the City Council had a first reading of an ordinance last week that would allow for a yearly maintenance fee for using public parking spaces instead. This is a win-win situation for both businesses in Old Town as well as the city as they would have a cost recovery vehicle for maintenance of parking in that section of town where public parking is definitely underutilized. Hopefully, the ordinance will be put through without a hitch.
If you want to see what they are up to in Old Town Tustin, check out the agenda report submitted by staff on the project. It sounds like a great investment in this area for Mr. Del Rio and we applaud him for bringing together a great building that will fit in quite nicely with the historic section of Our Town Tustin.
The Planning Commission meets tonight at 7pm to discuss this project. The project manager asks anyone in support of this project to join them at the City Council Chambers, 300 Centennial Way.
The city of Tustin has opened and closed the application process for vacant seats on the Planning Commission and the Community Services Commission. These appointments serve at the pleasure of the city council and are for two years each. The Planning Commission pays a stipend of $150.00 per meeting and usually meets twice a month in the city council chambers.
The Community Services Commission also serves at the pleasure of the council and the stipend is $100.00 per meeting for a once a month meeting. This Commission is an advisory body to the parks and recreation department regarding parks, design and facilities. It is a great commission that keeps the parks as what families and community members would like rather than what the city staffers think we should have. And, no, I am not complaining about the Parks Department. They do a great job at keeping our parks beautiful and safe for our families.
Seats on either of these commissions, according to the news release, require that applicants are both residents of the city of Tustin and registered to vote. Although applications had to be turned in by the close of business last Friday, this report is more to keep you informed that the Commission makeup may change very soon. It is unclear whether the interviews, which will be held by the City Council on Tuesday, April 3, 2012 at 4:30 pm, are open to the public, hopefully they are. If you have an interest in the process, you are urged to take some time and see our form of government in practice.