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1
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33750519291
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Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-156, 115 Stat. 272. At the time this manuscript went to press, Congress was in the process of passing the USA PATRIOT Improvement and Reauthorization Act of 2005, H.R. 3199, 109th Cong., 1st sess. ("Reauthorization Act"). Both houses were set to vote on the version of the bill outlined in H.R. Rep. No. 106-333 (2005)
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Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-156, 115 Stat. 272. At the time this manuscript went to press, Congress was in the process of passing the USA PATRIOT Improvement and Reauthorization Act of 2005, H.R. 3199, 109th Cong., 1st sess. ("Reauthorization Act"). Both houses were set to vote on the version of the bill outlined in H.R. Rep. No. 106-333 (2005).
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2
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33750502891
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U.S. Constitution, Fourth Amendment
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U.S. Constitution, Fourth Amendment.
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3
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0003706045
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St. Paul, MN: West Publishing
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Three points are worth noting at the outset. First, there are numerous exceptions to the rule that searches must be made pursuant to a search warrant. For example, searches in exigent circumstances, searches made during an arrest, non-criminal administrative searches, and consensual searches do not require warrants. Second, "probable cause" means that there must be a "reasonable ground for belief in certain alleged facts," and must obtain whenever a magistrate issues a search warrant. Black's Law Dictionary, 6th ed. (St. Paul, MN: West Publishing, 1990), p. 1201. Finally, section 213 applies only to searches conducted under such a search warrant.
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(1990)
Black's Law Dictionary, 6th Ed.
, pp. 1201
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4
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33750516121
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Wilson v. Arkansas, 514 U.S. 927, 931 (1995)
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Wilson v. Arkansas, 514 U.S. 927, 931 (1995).
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5
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33750525827
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Richards v. Wisconsin, 520 U.S. 385, 394-395 (1997)
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Richards v. Wisconsin, 520 U.S. 385, 394-395 (1997).
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6
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33750499318
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See U.S. Federal Rules of Criminal Procedure 41(f)(3)
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See U.S. Federal Rules of Criminal Procedure 41(f)(3).
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7
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33750501827
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U.S. v. Villegas, 899 F.2d 1324, 1337 (9th Cir. 1990)
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U.S. v. Villegas, 899 F.2d 1324, 1337 (9th Cir. 1990);
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8
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33750510522
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U.S. v. Panghurn, 983 F.2d 449, 453 (2nd Cir. 1993)
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U.S. v. Panghurn, 983 F.2d 449, 453 (2nd Cir. 1993).
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9
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33750511766
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Note, however, that covert entry for the purpose of installing surveillance devices (e.g., phone taps) has long been considered constitutionally permissible. Dalia v. U.S., 441 U.S. 238, 248 (1979)
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Note, however, that covert entry for the purpose of installing surveillance devices (e.g., phone taps) has long been considered constitutionally permissible. Dalia v. U.S., 441 U.S. 238, 248 (1979).
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10
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33750528211
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§213(2)(b)(1). Section 213 modifies 18 USC §3103(a) (2005)
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§213(2)(b)(1). Section 213 modifies 18 USC §3103(a) (2005).
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11
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33750524275
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18 U.S.C. §2705. Patriot §213 incorporates this statute by reference
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18 U.S.C. §2705. Patriot §213 incorporates this statute by reference.
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12
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33750496955
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§ 213(2)(b)(2)
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§ 213(2)(b)(2).
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14
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33750520166
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18 U.S.C. §2705(2)(e) (2005)
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18 U.S.C. §2705(2)(e) (2005).
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15
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33750496437
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U.S. v. Freitas, 800 F.2d 1451, 1456 (1986)
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U.S. v. Freitas, 800 F.2d 1451, 1456 (1986).
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16
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33750520974
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§ 213(b)(3)
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§ 213(b)(3).
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17
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33750495635
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The Reauthorization Act changes this slightly, stating that warrants should provide notice "within a reasonable period not to exceed 30 days," though that can be longer "if the facts of the case justify a longer period of delay." H.R. 3199 §114(a)(1). The Reauthorization Act reaffirms the power to extend the delay upon showing "good cause." §114(a)(2). Note that these changes do not bear significantly on my analysis of the Patriot Act's impact on privacy
-
The Reauthorization Act changes this slightly, stating that warrants should provide notice "within a reasonable period not to exceed 30 days," though that can be longer "if the facts of the case justify a longer period of delay." H.R. 3199 §114(a)(1). The Reauthorization Act reaffirms the power to extend the delay upon showing "good cause." §114(a)(2). Note that these changes do not bear significantly on my analysis of the Patriot Act's impact on privacy.
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18
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4544332396
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1112-1113
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The DOJ recognizes that case law concerning surreptitious seizures -specifically the "reasonable necessity" requirement under §213(2)(b)(2) - is not very well developed. Field Guide, p. 6. However, John Whitehead and Steven Aden of the Rutherford Institute imply that this erodes the notice requirement 'iForfeiting 'Enduring Freedom' for 'Homeland Security': A Constitutional Analysis of the USA PATRIOT Act and the Justice Department's Anti-Terrorism Initiatives', American University Law Review 51 (2002): 1081, 1112-1113.
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(2002)
American University Law Review
, vol.51
, pp. 1081
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19
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33750524449
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The USA PATRIOT Act of 2001: Criminal procedure sections
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November
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Scheidegger, Kent. Charles Hobson, Maritza Meskan, Kannon Shanmugam and Stephen Henderson, The USA PATRIOT Act of 2001: Criminal Procedure Sections', Federalist Society White Paper (November 2001), p. 8. Available on the World Wide Web at www.fed-soc.org.
-
(2001)
Federalist Society White Paper
, pp. 8
-
-
Scheidegger, K.1
Hobson, C.2
Meskan, M.3
Shanmugam, K.4
Henderson, S.5
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20
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33750505223
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-
note
-
It may, however, have the practical effect of turning up more information through more effective, ongoing surveillance. But more effective surveillance alone is not sufficient to decrease privacy. Another way in which 213 might be relevant to privacy considerations is its effect upon thwarting defective warrants. Without notice (i.e., without knock-and-announce), there may well be cases in which the subjects of searches are unable to stop searches based on faulty warrants. Thus, if a warrant is for a wrong address, or if it has expired, notice allows a subject to stop the search from happening. This may become important on the account that I offer below, for there are no other cues for when one has been subject to a search based upon a faulty warrant. Thus, even for those who have good reason to believe that they would be the subject of a legitimate, warranted search, the lack of notice means that their belief is a little less warranted.
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21
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33750510309
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Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. §1861 et seq. (2005)
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Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. §1861 et seq. (2005).
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22
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33750511130
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The Reauthorization Act requires that the FBI show "that there are reasonable grounds to believe" that the records sought are "relevant to an authorized investigation." H.R. 3199 §106(b)
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The Reauthorization Act requires that the FBI show "that there are reasonable grounds to believe" that the records sought are "relevant to an authorized investigation." H.R. 3199 §106(b).
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23
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33750494761
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If the target is a "United States person," the investigation may not be "conducted solely upon the basis of activities protected by the first amendment to the Constitution," Patriot Act §215. This makes it possible for such an investigation to be solely based upon the First Amendment protected activities of non-United States persons and to conduct investigations of United States persons based primarily, but not solely, upon First Amendment protected activities
-
If the target is a "United States person," the investigation may not be "conducted solely upon the basis of activities protected by the first amendment to the Constitution," Patriot Act §215. This makes it possible for such an investigation to be solely based upon the First Amendment protected activities of non-United States persons and to conduct investigations of United States persons based primarily, but not solely, upon First Amendment protected activities.
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24
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33750526492
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§ 106(b)
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§ 106(b).
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25
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33750523854
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Lawmakers approve expansion of F.B.I.'s antiterrorism powers
-
November 20
-
See Patriot Act section 215(c)(1) ("Upon an application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of records if the judge finds that the application meets the requirements of this section."); Reauthorization Act section 106(c) ("Upon an application made pursuant to this section, if the judge finds that the application meets the requirements of subsections (a) and (b), the judge shall enter an ex parte order as requested, or as modified, approving the release of tangible things.") Note too that later amendments included in the 2004 Intelligence Authorization Act have expanded the sorts of information available for disclosure under section 215 by broadening the definition of "financial institution." See Lichtau, Eric 'Lawmakers Approve Expansion of F.B.I.'s Antiterrorism Powers', New York Times, November 20, 2003, p. A23.
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(2003)
New York Times
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Lichtau, E.1
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26
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33750518418
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The Reauthorization Act allows disclosure only where it is necessary to comply with the order or to an attorney in order to "obtain legal advice or assistance" regarding the order; these other parties are prohibited from further disclosure. H.R. 3199 §106(e)
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The Reauthorization Act allows disclosure only where it is necessary to comply with the order or to an attorney in order to "obtain legal advice or assistance" regarding the order; these other parties are prohibited from further disclosure. H.R. 3199 §106(e).
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-
-
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27
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33645375859
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Civil liberty and the response to terror
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700
-
See, for example, Rosenzweig, Paul, 'Civil Liberty and the Response to Terror', Duquesne University Law Review 42 (2004): 663, 700.
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(2004)
Duquesne University Law Review
, vol.42
, pp. 663
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-
Rosenzweig, P.1
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28
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0000333978
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Privacy, morality, and the law
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Autumn, 269
-
Parent. W. A., 'Privacy, Morality, and the Law'. Philosophy and Public Affaira 12(4) (Autumn, 1983): 269-288, 269.
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(1983)
Philosophy and Public Affaira
, vol.12
, Issue.4
, pp. 269-288
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-
Parent, W.A.1
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29
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0003339293
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Privacy and the limits of law
-
Ferdinand Schoeman (ed.), (Cambridge: Cambridge University Press)
-
Gavison, Ruth, "Privacy and the Limits of Law', in Ferdinand Schoeman (ed.), Philosophical Dimensions of Privacy (Cambridge: Cambridge University Press, 1984), p. 430.
-
(1984)
Philosophical Dimensions of Privacy
, pp. 430
-
-
Gavison, R.1
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31
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33750531278
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-
note
-
I take Allen's view of privacy as "being beyond the range of others' five senses ..." to mean that one is in fact beyond others' five sense, though they might be in principle within their range. Thus, I have privacy with respect to my daily habits so long as no one actually follows me around, though someone could in principle do so.
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-
-
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32
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0004344388
-
-
Oxford: Oxford University Press
-
For an extensively developed control-based view, see Inness, Julie. Privacy, Intimacy, and Isolation (Oxford: Oxford University Press, 1992).
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(1992)
Privacy, Intimacy, and Isolation
-
-
Inness, J.1
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35
-
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33750500740
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-
note
-
There are, of course, social controls over one's friends and acquaintances, so one has some limited control. The important point is that control admits of degree (after all there are social controls over strangers and adversaries as well).
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-
-
-
36
-
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33750521189
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-
note
-
There is some dispute about whether section 215 really does provide greater access to information, for FISA and grand jury subpoena powers were quite broad before the Act passed. This, however, is not important for the purpose of this paper, which focuses on the gag-rule provision.
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-
-
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37
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33750515906
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The plaintiffs in Muslim Community Association of Ann Arbor v. Ashcroft, Civil Action No. 03-72913 (E.D. Mich.) raise these concerns. See Motion in Response to Defendants' Motion to Dismiss
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The plaintiffs in Muslim Community Association of Ann Arbor v. Ashcroft, Civil Action No. 03-72913 (E.D. Mich.) raise these concerns. See Motion in Response to Defendants' Motion to Dismiss.
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-
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38
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33750527590
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-
There is the possibility that the Act might permit such extraordinarily long delays that effective opposition would be impossible. This is an important issue, but because it would be hard to establish "reasonable cause" for such long delays, an objection based on such delays would seem to presume abuse. My task here, though, is to provide a critique of the Act that addresses the provisions absent abuse. See "Potential for Abuse" section, infra
-
There is the possibility that the Act might permit such extraordinarily long delays that effective opposition would be impossible. This is an important issue, but because it would be hard to establish "reasonable cause" for such long delays, an objection based on such delays would seem to presume abuse. My task here, though, is to provide a critique of the Act that addresses the provisions absent abuse. See "Potential for Abuse" section, infra.
-
-
-
-
39
-
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33750503234
-
-
See Plaintiffs Response to Defendant's Motion to Dismiss. MCAA v, Axhcroft, Civil Action No. 03-72913 (E.D. Mich. 2004), at 35
-
See Plaintiffs Response to Defendant's Motion to Dismiss. MCAA v, Axhcroft, Civil Action No. 03-72913 (E.D. Mich. 2004), at 35.
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-
-
-
40
-
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0007445191
-
The nature and value of rights
-
view in Feinberg, Joel, (Princeton, NJ: Princeton University Press)
-
This follows Joel Feinberg's view in 'The Nature and Value of Rights', in Feinberg, Joel, Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy (Princeton, NJ: Princeton University Press, 1980), pp. 143-158.
-
(1980)
Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy
, pp. 143-158
-
-
Feinberg, J.1
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41
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33750511963
-
-
note
-
Of course this does not make it excusable that the employer not pay; he has committed a moral wrong precisely because the employee has a valid claim. Rather, considerations dictate that the best possible outcome will leave that valid claim unmet or redressed in some way other than immediate repayment.
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-
-
-
42
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33750506323
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-
note
-
In this example, it may be the case that the voters do not care about whether or not their right to vote is valuable (the same could be true in the case of privacy). However, whether a right is not valuable because necessary conditions of its having value are absent and whether or not people actually place value on that right are distinct issues. Moreover, where the mechanism for protecting the conditions under which a right has value is popular support (e.g., markets for information, electoral support for notice of searches) the question of whether a group of people overall values a right will likely come apart from whether that right has value to those few people who do care about it.
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-
-
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43
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0004048289
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-
Cambridge, MA: Harvard University Press
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Rawls, John, A Theory of Justice, revised edition (Cambridge, MA: Harvard University Press, 1999), p. 179.
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(1999)
A Theory of Justice, Revised Edition
, pp. 179
-
-
Rawls, J.1
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44
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0039316505
-
Political equality in justice as fairness
-
May
-
See generally Brighouse, Harry, 'Political Equality in Justice as Fairness', Philosophical Studies 86(2) (May 1997): 155-184;
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(1997)
Philosophical Studies
, vol.86
, Issue.2
, pp. 155-184
-
-
Brighouse, H.1
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45
-
-
0008423944
-
Equal liberty and unequal worth of liberty
-
Norman Daniels (ed.), (New York: Basic Books)
-
Daniels, Norman, 'Equal Liberty and Unequal Worth of Liberty', in Norman Daniels (ed.), Reading Rawls (New York: Basic Books, 1975), pp. 253-281. Strictly speaking, Rawls only distinguishes between liberties and the value of those liberties. However, as long as some liberties are so important that they are people's moral due (as is the case on Rawls' view), the distinction will hold for such rights and the value of those rights.
-
(1975)
Reading Rawls
, pp. 253-281
-
-
Daniels, N.1
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46
-
-
33750502453
-
-
note
-
It is more accurate to say that the right is a complex right which includes the right to speak freely and the right to immunity from prosecution for what one says (in certain contexts). But that does not bear on the analysis.
-
-
-
-
47
-
-
33750520973
-
-
note
-
While "liberty' is often used to mean either a relationship in which one person is free of constraints from other, particular entities (e.g., free from state-imposed restrictions on speech) or the capacity to achieve certain ends, should one desire to, 'right' generally refers only to the former. Thus, 'right' will only apply to 'liberty' in the first sense. Moreover, this means that where one has a right to a relational-liberty but not a capacity-liberty, any intuition that there is some sense in which one does not really have the right at all should be rejected.
-
-
-
-
48
-
-
33750515694
-
-
note
-
Note how this fits with the text of the First Amendment of the U.S. Constitution, which states that "Congress [subsequently interpreted to include all federal, state, and local governments] shall make no law ... restricting freedom of speech." Certainly this allows the possibility that free speech can be restricted by other actors; indeed, it's a commonplace that constitutional free speech claims extend only to state actions.
-
-
-
-
49
-
-
33750520165
-
-
note
-
Thanks to Harry Brighouse for bringing this point to my attention.
-
-
-
-
50
-
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33750496954
-
-
See Rawls, A Theory of Justice, 196-197, 200-201. The idea here is that the fact that citizens are political equals implies a pro tanto reason for collective decisions to be made in accordance with the majority's will. This is manifest in the right to vote, which accordingly encompasses the right to have one's will hold, when one is in the majority. Note that this is a more detailed (but compatible) account of the right to vote than described in above.
-
A Theory of Justice
, vol.196-197
, pp. 200-201
-
-
Rawls1
-
51
-
-
33750523051
-
-
note
-
Again, the mere fact that a member of a persistent minority thinks less of her right to vote does not suffice to undermine its value, unless thinking that the right has value is integral to the justification for the right in the first place. Note, too, that the existence of persistent minorities may engender rights-violations or undermine the value of some other rights. But merely being in the minority does not suffice to do so.
-
-
-
-
52
-
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33750519907
-
-
note
-
Of course, the ability of employers to do so is usually justified in terms of their right to hire or fire whom they wish. But this is compatible with the exercise of that right diminishing the value of other rights.
-
-
-
-
53
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33750511765
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-
note
-
However, Brighouse argues that on Rawls's view, equality requires the fair value of political liberties ("Political Equality in Justice as Fairness," supra note 40). On this view it would seem that because poor oratory decreases one's opportunity for political influence, it ought to be compensated for with greater opportunity for political influence in other ways. Something similar might be necessary in the case of isolated living.
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-
-
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54
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33750505222
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note
-
Another way of putting this might be that merely having the intuition that some decreases in the value of a right are morally problematic is insufficient to show that such a decrease creates a duty for others to preserve that value. Rather, there must be an underlying account of why such decreases have moral force at all.
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-
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55
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84871647310
-
-
It would increase the value of free speech for those with access to the remaining broadcast spectrum, but if influence is not zero-sum then there is an overall decrease in the right. I make no claim here about the principles according to which the value of a right ought to be distributed. However, as an anonymous reviewer for this paper pointed out, mere maximization of aggregated value would conflict with Rawls's difference principle. "The lesser worth of liberty is, however, compensated for, since the capacity of the less fortunate members of society to achieve their aims would be even less were they not to accept the existing inequalities whenever the difference principle is satisfied." A Theory of Justice, p. 179.
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A Theory of Justice
, pp. 179
-
-
-
56
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0002964190
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Privacy as an aspect of human dignity: An answer to dean prosser
-
Bloustein, Edward J., 'Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser', New York University Law Review 39 (1964): 962-1007.
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(1964)
New York University Law Review
, vol.39
, pp. 962-1007
-
-
Bloustein, E.J.1
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57
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33750517323
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-
note
-
Exactly what Bloustein's view demands, and arguments for why people ought to be viewed as autonomous agents is a task beyond this paper. The main point is that Bloustein's view focuses on the inherent wrong of impinging upon privacy, independently of any ill-effects on individuals whose privacy is violated.
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-
-
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58
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-
1842743666
-
Privacy, freedom, and respect for persons
-
J. R. Pennock and J. W. Chamman (eds.) (New York: Atherton Press)
-
Benn, Stanley I., 'Privacy, Freedom, and Respect for Persons', in J. R. Pennock and J. W. Chamman (eds.), Nomos XIII: Privacy (New York: Atherton Press, 1971), pp. 1-26;
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(1971)
Nomos XIII: Privacy
, pp. 1-26
-
-
Benn, S.I.1
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59
-
-
77955497017
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Privacy, intimacy and personhood
-
Reiman, Jeffrey, 'Privacy, Intimacy and Personhood', Philosophy and Public Affairs 6(1) (1976): 26-44;
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(1976)
Philosophy and Public Affairs
, vol.6
, Issue.1
, pp. 26-44
-
-
Reiman, J.1
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61
-
-
0004344388
-
-
Inness, Privacy, Intimacy, and Isolation. Inness' view is a little more complex than this. She seems to meld the intrinsic and instrumental values of privacy by identifying privacy as a constitutive part of intimate relationships, which are themselves intrinsically valuable. Whether or not this is plausible is not vital to my purposes in this paper, which is merely to point out that there are a number of views that seem to value privacy for what it does.
-
Privacy, Intimacy, and Isolation
-
-
Inness1
-
64
-
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0003615959
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-
Ithaca, NY: Cornell University Press
-
DeCew, Judith, In Pursuit of Privacy: Law, Ethics, and the Rise of Technology (Ithaca, NY: Cornell University Press, 1997).
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(1997)
Pursuit of Privacy: Law, Ethics, and the Rise of Technology
-
-
DeCew, J.1
-
65
-
-
0000333978
-
Privacy morality and the law
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275
-
'Privacy Morality and the Law', Philosophy and Public Affairs 12(4) (1983): 269-288, 275.
-
(1983)
Philosophy and Public Affairs
, vol.12
, Issue.4
, pp. 269-288
-
-
-
66
-
-
33750497076
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-
Under U.S. v. Freitas, one would in any case find out within seven days
-
Under U.S. v. Freitas, one would in any case find out within seven days.
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-
-
-
67
-
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33750504045
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-
See supra note 14.
-
Supra Note
, vol.14
-
-
-
68
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33750503439
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-
note
-
Here one might point out that some people - for example, those most distrustful of the state or jealous of their privacy - may be particularly likely to think that the Act will be put to use to monitor them, and that these people's privacy is of particular importance. Even so, the effect of the Act on their behavior would be unclear. After all, their distrustful disposition may suffice to shape their behavior independently of the Act. Moreover, the criticism would fail to apply to the Act if it were passed in secret. Thanks to an anonymous reviewer for raising this point.
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-
-
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69
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33750531681
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-
note
-
On a side note, both views explain cases in which one irrationally doubts that they have privacy - because of outlandish conspiracy theorizing, for example. In this case, the value of privacy is diminished because one doesn't believe one has it.
-
-
-
-
70
-
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13744259992
-
Democratic principles and mandatory labeling of genetically engineered food
-
July, 226-233
-
This argument follows closely the formulation in Streiffer, Robert, and Rubel, Alan, 'Democratic Principles and Mandatory Labeling of Genetically Engineered Food', Public Affairs Quarterly 18(3) (July 2004): 223-348, 226-233,
-
(2004)
Public Affairs Quarterly
, vol.18
, Issue.3
, pp. 223-348
-
-
Streiffer, R.1
Rubel, A.2
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71
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13744250139
-
Respecting the autonomy of European and American consumers: Defending positive labels on GM foods
-
January
-
and Rubel, Alan and Streiffer, Robert, 'Respecting the Autonomy of European and American Consumers: Defending Positive Labels on GM Foods', Journal of Agricultural and Environmental Ethics 18(1) (January 2005): 75-84.
-
(2005)
Journal of Agricultural and Environmental Ethics
, vol.18
, Issue.1
, pp. 75-84
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Rubel, A.1
Streiffer, R.2
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72
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0009159338
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Autonomy and benevolent lies
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Thomas Hill, Jr., 'Autonomy and Benevolent Lies', Journal of Value Inquiry 18 (1984): 251-267.
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(1984)
Journal of Value Inquiry
, vol.18
, pp. 251-267
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Hill Jr., T.1
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73
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33750524273
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note
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Note that this is not an all-things-considered judgment that the information must be revealed or transparent. That conclusion will depend on what sort of obligations the information holder has to the person the information is about.
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74
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33750524450
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note
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Another possibility is that the view defended here is really an instrumental account, on the grounds that information about privacy is instrumental for us to tailor our actions according to whether we actually have privacy. This would be true only if there were particular ends that having such information fosters, but the view here just concerns having the information. Put another way, it is not an instrumental account for the same reason that truth-telling is not instrumental in respecting persons. There is no particular outcome that underwrites the value of truth-telling; rather, truth-telling is important because respecting persons demands it. Similarly, having information (about privacy, for example) may be either instrumentally good or instrumentally bad, based on consequences. But obfuscating that information is a failure of respect for persons' autonomy. I owe this point to an anonymous reviewer.
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75
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33750505221
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note
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I'd like to thank Bruce Landesmann for raising this point to me.
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