Judge Buzz Arnold: No Harm, No Foul, No Chance

The argument took place in 2008, but it’s just coming to light now because terrorists.  Tim Cushing at Techdirt offers some highlights of the government’s view of how and why the government justifies its surveillance, contained in the just-released “oral arguments presented by Yahoo’s counsel (Mark Zwillinger) and the US Solicitor General (Gregory Garre).”

Included are such gems as this:

Zwillinger opens up the arguments by questioning the government’s methods of determining who should be placed under surveillance.

Why I show this to you is because I think it’s a perfectly fair question for you to ask the Solicitor General of the United States how a name gets on this list. This isn’t reviewed by a — the FISA Court. These names aren’t reviewed by the Attorney General of the United States. The difference between surveilling an account and exposing someone’s most private communications and not is how a name gets on this list; and all we know about it from page 47 of their brief, is that an intelligence analyst puts it on the list.

And the Solicitor General’s position:

MR. GARRE: I don’t think anybody would argue that the Fourth Amendment would apply to that communication, even though the email communications go to account in Sunnyvale, California. I haven’t understood Yahoo to argue that the Fourth Amendment would be implicated by that.

And, similarly, the Fourth Amendment isn’t —

JUSTICE SELYA: You mean the interception there by you and Yahoo would not implicate the Fourth Amendment?

MR. GARRE: That Certainly would be the government’s view.

But all of this pales in light of the words of Judge Morris S. Arnold.  If they sound familiar, they are. This was the argument made, and roundly ridiculed, by Congressman Mike Rodgers, chair of the House Intelligence Committee.

Vladeck: But who would be complaining?

Rogers: Somebody who’s privacy was violated.  You can’t have your privacy violated if you don’t know your privacy is violated.

Up to now, this lunacy was attributed to a politician, who is allowed under our system of democracy to be as stupid as his voters allow him to be.  As it turns out, Rodgers didn’t come up with this rationalization by himself.  From a twit by Trevor Timm:

transcript

This exchange is fascinating in two respects.  The first, obviously, is Judge Arnold’s inexplicable “no harm, no foul” perspective, because there can be nothing wrong with some peeping Tom looking into someone’s bathroom window if the person seen doesn’t know he’s there.

But Judge Arnold compounds the problem with his reply to Zwillinger’s response.  If there’s a general sense that the government is surveilling us, then “the market’s already discounted for any injury.”  Given that the myriad things about which people are concerned, it’s a truism that it never really matters until it touches their lives, the fact that they may be on a list somewhere because a clerk in the bowels of government decided to put them there, the actual target of government surveillance, completely changes the equation.  Oh no, the market hasn’t begun to adequately discount the injury until a person realizes that he’s the party injured.

Pondering how Judge Buzz Arnold of the 8th Circuit could utter these words, I turned to the most notable 8th Circuit critic around, Judge Richard Kopf, for his view of Judge Arnold.

To say that Judge Morris S. Arnold (Buzz), of the United States Court of Appeals for the Eighth Circuit, is brilliant understates the truth.  The word “polymath” is a perfect description of the judge.  In addition to being a highly regarded legal scholar, the judge is a historian of the first rank.

He was a professor at the Indiana University School of Law in Bloomington from 1971-1977. He was then the university vice president and professor at the University of Pennsylvania Law School from 1977–1981, when he returned to Arkansas as a professor at the William H. Bowen School of Law at the University of Arkansas at Little Rock from 1981 to 1984.  In 1985, he returned to Indiana as Dean of the law school.

In October, 1985, Judge Arnold was appointed as a district court judge, and elevated to the 8th Circuit in 1992.  A most impressive resume, for sure.  A brilliant legal scholar in the eyes of his brethren, apparently.  And yet, the transcript doesn’t lie.

There are many people whose cynicism toward the law and the courts will make them laugh derisively at what comes next, but for those of us who have spent our adult lives trying to make some small amount of headway by convincing the berobed to get their heads out of their butts, we do so in the belief that despite our political and experiential differences, we are, for the most part, reasonable people.  We believe that, as reasonable people, we can employ facts and logic to reach a better understanding of what’s real and what’s nonsensical.

Reading these words coming from the mouth of a “polymath” breaks my cold, dark, lawyerly heart.  These are not the words of disagreement or dispute; these are the words of someone who lacks any desire to impair the mission of the government at the expense of the people.  With these words, we not only lose, but we have no hope.

28 thoughts on “Judge Buzz Arnold: No Harm, No Foul, No Chance

  1. Richard G. Kopf

    SHG,

    Although the transcript you quote can be read a variety of ways, and I don’t have any details, I think Judge Arnold was saying that Yahoo suffered no injury as contrasted with a particular consumer. This was because (1) the market for Internet e-mail had already discounted the possibility of governmental interception and (2) the market would be unaware of this particular interception (if in fact it was an interception)–therefore, Yahoo was not and could not be harmed. In fact, it appears that Yahoo was not making a Fourth Amendment argument for the consumer generally or this particular consumer. It was making an argument that the corporation might suffer harm but not because the Fourth Amendment was implicated.

    All the best.

    RGK

    1. SHG Post author

      With all due respect, Judge (and I mean that, unlike all the other times I’ve said it), I don’t think Yahoo was arguing about its own injury, but the harm done to its account holders. To the extent there is validity to the contention that no Fourth Amendment rights are implicated, that is due to the third-party doctrine, an archaic excuse that must come to a brutal, painful death.

      1. Richard G. Kopf

        SHG,

        Perhaps you are right. I don’t know enough other than to offer my tentative alternative explanation contained in my comment.

        I do know this, however. Buzz is very smart and he is wonderfully educated.

        He is also a bit of a libertarian (at times). Indeed, he dissented from my refusal to throw out a search of a computer when the government went looking for child porn. He believed the warrant affidavit was insufficient. See United States v. Gant, 490 F.3d 627 (8th Cir. 2007) (Judge Arnold, dissenting, stated: “The affidavit in this case provides no detail with respect to what Mr. Lewis actually saw. The only information in the affidavit about the images is as follows: “Sundstrom advised Lewis had been a Computer technician for a long time and has worked on several home computer processing units. Sundstrom advised Lewis has found pornography on several computers but believes that what he found on the Grant’s [sic] computer to be child pornography.” The sum of this information is insufficient to support the issuance of a search warrant because it is too conclusory and because it is hearsay.”)

        I continue to believe that Buzz was wrong by the way, but, as his dissent in Gant shows, he is not insensitive to the Fourth Amendment and the warrant requirement in this age of digital technology. All the best.

        RGK

        1. SHG Post author

          I take no issue with his education or qualifications. If I had his background, I would be taller, handsomer and far wealthier. Maybe it’s terrorism? I can’t speak to what caused him to utter the words, except that it kills my soul to read them.

          Now that I think about, maybe that’s why I’m not taller, handsomer and far wealthier. My concerns are misdirected.

        2. Jake DiMare

          So Judge Arnold is for mass surveillance & violating our rights en masse when it’s in the Government’s interests and he is against it when it’s in the interests of individual child pornographers?

          You’re right Judge Kopf, he does sound like a wonderful man.

          1. Patrick Maupin

            Those positions are actually quite consistent. If the parents don’t know that there are naked pictures of their three year old on cousin John’s laptop, where’s the harm? If we tell the public what the government knows about them, or tell the parents about the naked photo shoot, that will only lead to trouble.

  2. John Barleycorn

    I am now quite convinced that your circadian blawging tempests may be completely out of your control esteemed one.

    You may even be possessed. This is probably a good thing though.

    Thursdays it is!

    BTW, did you inadvertently link the definition of polymath under your last imbedded “polymath” hot link or were you intending to insert more of Judge Arnold’s words from the bench there?

      1. John Barleycorn

        I was expecting more excerpts from the judge’s transcript under that polymath link in your post.

        My bad but it is good to see that you are linking definitions for those of us in the cheap seats.

        Looking forward to Thursdays.

        Extraordinarly thought provoking content today from the SJ Headquarters today.

  3. John S.

    It seemed to me that this quote is the real money shot:

    “The whole thrust of the development of Fourth Amendment law has sort of emphasized the watchdog function of the judiciary. If you just look at the Fourth Amendment, there’s nothing in there that really says that a warrant is usually required. It doesn’t say that at all, and the warrant clause is at the bottom end of the Fourth Amendment, and — but that’s the way — that’s the way it has been interpreted.”

    I’d say we really have lost, but at this point I’m not sure if we’re even playing the same game…

    1. SHG Post author

      That’s been the fashionable attitude of the government (and its allies) for a while now, that the warrant clause of the 4th Amendment is subsidiary to the reasonableness. While the law is historically that a warrantless search is presumed unreasonable, the Supremes appear to be backing off that notion that looking at the reasonableness of a search without regard to the lack of warrant or opportunity obtain a warrant. In other words, that’s not the money shot at all.

  4. lawrence kaplan

    I think that horses were switched here in mid-stream. Judge Arnold’s initial remark clearly and undeniably refers to the consumers being monitored. Note he says “The people don’t know that they are being monitored in some way,” and “What ‘s the damage to your consumer?”
    But then, or so it seems to me, Zwillinger shifts from the real issue of the harm to Yahoo’s customers to the new issue of the harm to Yahoo when its customers will know about the general surveillance. In response to this point Judge Arnold’s response seems well taken. But his initial remark is scary enough.

    1. SHG Post author

      I don’t think that’s accurate at all. Zwillinger is clearly referring to the question of whether people know by responding that the perception is widespread.

      1. lawrence kaplan

        SHG: Upon my rereading the transcript yet again, I now see that you are clearly right in your claim that “Zwillinger is clearly referring to the question of whether people know by responding that the perception is widespread.” But perhaps Judge Arnold misunderstood Zwillinger, as I initially misunderstood him and as Judge Kopf misunderstood him, to be referring to the issue of harm to Yahoo. If this is so, then Arnold in his reply to Zwillinger would indeed be referring to the harm to Yahoo. This make sense of his reference to the market being already being discounted, which fits better any possible harm to Yahoo, as opposed to harm to its customers. Again, Judge Arnold’s initial statement, in contrast, clearly refers to harm to Yahoo’s customers, and is bad enough.

  5. lawrence kaplan

    My suggestion was offered in a tentative vein, and, as I said, I find the latter part of the exchange very unclear. But perhaps you might wish to set forth the reasons why you think my reading is inaccurate.

    1. SHG Post author

      First, please use reply if you’re replying to me. Second, I did explain it. Third, your reading difficulties don’t make it my duty to explain something very simple in your paradigm.

      You find it unclear? Well then.

      1. Sgt. Schultz

        Why are you blaming Lawrence for your mistake? You failed to include a trigger warning: English ahead, and now you’ve traumatized him. You really aren’t very good at providing a safe and supportive environment here for Lawrence.

        1. lawrence kaplan

          Sgt. Schultz: I’m glad you had your little fun at my expense. But perhaps there should be a trigger warning: This blog is for grownups.

      2. lawrence kaplan

        I’m sorry that I somehow missed the second sentence of your reply. My apologies. Perhaps you are right.

        1. John Barleycorn

          Definitely one of the top five posts of the quarter.

          This post was and is worthy of a few thousand pounds of compressed air and some hydraulics, not approved by OSHA, ready to do some heavy lifting in the back pages.

          “We” failed on this one gentleman!

          Stop digging.

          Rarely (if you haven’t noticed) does the esteemed one expose the hair on his toes while jumping into the deep end of the pool.

          I got nothing but a yielding desire to re-evaluate my presence and its worthiness, by design, to add some feeble attempts at comedic relief and distraction here. Which is attempted far to regularly.

          No fucking way any of us “regulars” from the back pages
          can take any sense of community or contribution if our individual ‘grins and giggles’ are the straws that add the last few grams of weight that may one day contribute to the esteemed one
          saying “what the fuck am I doing this for?” and finally accepting his sentence.

          For that matter where the heck is “everyone” on this post?

          I have no idea what a federal robe from Nebraska who watches more football than pheasants falling in fall fields and a CDL that takes the train into the dungeon of Manhattan everyday have cooking but they seem to be as far apart as they are near and my inclination is they are going out of their way to park any pretense of intimidating.

          My guess is they both can bite but the barks are what they are…

          Anyway, for whatever it may be worth, no question about it, the esteemed one needs no tummy rubs.

          In fact what he probably needs is his toe knuckle hairs plucked an hour before he normally awakes every now and them and more than a few of you have the skills to wake him.

          The man can’t dress but he can think and equally as important write while he brings it by the train load.

          And the band played on…because of ‘terrorism’ or something!

            1. John Barleycorn

              Bite me!

              BTW who the mother of fucks says “bite me” .

              It nearly sounds like “what’s up Dude”!

              Not even the softest of scrambled eggs and bacon wrapped in paper can cleanse that.

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