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Wednesday, January 02, 2008
Article on Marine defense counsel's challenge to lack of computer privacy
We earlier had a spirited discussion about whether the new military computer banners preclude military defense counsel from using their computers to communicate or store privileged information. An NCTimes.com article on NIMJ's web site indicates that this issue is being litigated in the Marine Corps case of United States v. Tatum, one of the prosecutions arising from Haditha. Here's a link to the article. Jack Zimmerman, who is fabulous, is the civilian defense counsel raising the issue, so it's sure to be well-litigated.
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5 comments:
When this discussion first came up I thought it was much ado about nothing. But, reading the military judge's comment that defense lawyers can simply use fax machines and phone calls shows that I was wrong.
While Anonymous and I frequently disagree, I have to say this issue has now become a real mil jus issue now that a military judge has made a statement so out of touch with the law and. . . . reality. Military Judge 8:06:12 AM Col Robinson is cited in the article as stating, in court, that, "defense attorneys don't have to use computers and e-mail, but can rely on fax machines, phone calls and mail to get the job done" to avoid exposing client confidences to law enforcement. Maybe they can use typewriters and carbon paper to type work product too. And while they are at it, maybe they can send documents internationally to other counsel on the case (a frequent occurence in our expeditionary JAG Corps, right Admiral) using carrier pigeon.
Also I note that the banner, as now formulated (though apparently it has been removed recently), begins by stating that law enforcement agents can search your computer at any time, which I must have missed in the first round of this discussion. That violates the principle I mentioned about people at the top formulating a smart banner and policy.
Amazing how a few pieces of bad lawyering can make a huge issue out of a non-issue. That's my JAG Corps!
FYI, I've included below the banner notice that appears on my computer. If I actually ever read it, I'd be hard pressed as a defense/legal assistance attorney to argue that I fulfilled my ethical obligations to my client if I used it in the course of my representation.
But, per the article referenced above, I can't see how the defense's lack of a confidential computer system could be a violation of Article 46, given the fact that trial counsel suffer under the same system.
SD
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You are accessing a U.S. Government (USG) information system (IS) that is provided for USG-authorized use only. By using this IS,you consent to the following conditions: - The USG routinely monitors communications occurring on this IS,and any device attached to this IS,for purposes including,but not limited to,penetration testing,COMSEC monitoring,network defense,quality control,and employee misconduct,law enforcement,and counterintelligence investigations.
- At any time,the USG may inspect and/or seize data stored on this IS and any device attached to this IS. - Communications occurring on or data stored on this IS,or any device attached to this IS,are not private. They are subject to routine monitoring and search.
- Any communications occurring on or data stored on this IS,or any device attached to this IS,may be disclosed or used for any USG-authorized purpose.
- Security protections may be utilized on this IS to protect certain interests that are important to the USG. For example,passwords,access cards,encryption or biometric access controls provide security for the benefit of the USG. These protections are not provided for your benefit or privacy and maybe modified or eliminated at the USG's discretion.
BY ACCESSING THIS COMPUTER, YOU AGREE TO BE SODOMIZED AT ANY TIME WITH A RED-HOT POKER, BRANDED: USGA APPROVED.
In contract law, there is a principle that routine and ordinary acts may not be construed as consent to a specific contract. In the modern world, I think using email has become such an ordinary and routine act.
When I filed the "throw away" motion to suppress e-mails seized from LCpl Long's computer in her SPCM, I had every expectation that TC would prep his IT witness and every expectation that Fast Eddie, the Military Judge would fumble the ruling. Hard to believe that such a throw away motion could cause all the hate and discontent that it has. LCpl Long is happily working in civilian life with her Honorable discharge and is awaiting the payment of her back-pay and allowances. Meanwhile, the Government flails around and still does not have an acceptable answer. It sounds like Judge Robinson took lessons on judging from Fast Eddie Loughran.
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