The irony of all of this is not lost on me.  Here I am, arguing not that respected political figures should be barred from making such statements, but that they should refrain from doing so because they might, and indeed have, incite unnecessary violence.  This is the exact argument being made by those who oppose the construction of the Times Square mosque.  However, the fundamental difference in my mind is the intent of each party and the impact of their respective actions.  Those in the Muslim community in New York aren’t building an Islamic center to provoke others who do not share their beliefs; they are building an Islamic center to practice their faith.  When the Mosque is built, the November elections pass, and the headlines fade, all that will be left will be a community of Americans with different beliefs coexisting with each other as a testament to the values that make America impervious to the extremists who attacked us.  Political figures who advocate for the ostracization of American Muslims, however, do so to provoke a reaction and influence the upcoming election.  The ramifications of such fear mongering will be felt long after November, and all that will be left will be an internalized religious conflict that will serve as a lasting example of the effectiveness of terrorist attacks in destroying what truly makes this America.

I’ve visited Murfreesboro on more than one occasion.  It is a small, beautiful town at the heart of Tennessee.  (Literally, it is the exact geographic center of Tennessee.)  Some might say it is the heart of the “real America.”  But that heart is being hardened by those who would cast aside our longest-held beliefs for fleeting political gain, and it grows black with the ashes of a Mosque burned in fear.

Nazis don’t have the right to put up a sign next to the Holocaust Museum in Washington.  We would never accept the Japanese putting up a site next to Pearl Harbor. There’s no reason for us to accept a mosque next to the World Trade Center.

Newt Gingrich is a very intelligent man.  He holds a doctorate in European history.  He knows more than your average bear about the way our government functions.  What would compel a man of such stature to make a statement that is so blatantly false?  Newt Gingrich knows that he isn’t fooling you and me.  But I suspect Newt Gingrich also knows that he is absolutely fooling a large number of American citizens who aren’t well enough informed to see through his mischaracterizing the issue.  Let’s go to the play-by-play to break this one down.

Nazis don’t have the right to put up a sign next to the Holocaust Museum in Washington.

Where to begin?  What Nazis are we talking about?  Is Newt contemplating a scenario in which a zombie horde of Third Reich Nazis rise from their graves to terrorize the world once more, albeit more humanely by picketing a museum?  Or does he mean American neo-Nazis?  I suppose one could make a captive audience argument in the latter case, but I do believe such citizens would have the right speak in a public forum such as a sidewalk next to the museum.

We would never accept the Japanese putting up a site next to Pearl Harbor.

Second verse, same as the first.  Who are “the Japanese?”  Would we allow the Japanese government to unilaterally erect some sort of Steve Urkel-esque “Oops! Did I do that?” monument on American soil?  I doubt it.  Would we allow the Toyota corporation to do so?  Well, the last thing I heard from the Supreme Court was that corporations are just super-sized versions of regular people like you and me, so I suppose we would.  Now for the kicker.

There’s no reason for us to accept a mosque next to the World Trade Center.

Ah, the classic bait-and-switch.  First we have the Nazis, then their Axis companion the Japanese, and just to make sure we all remember that “we are at war,” he ends with the unnamed shadowy Islamic threat that attacked us on our soil.  Newt’s argument never really got off the ground to begin with, but it still manages to somehow crash and burn from an altitude of zero feet.  There is no foreign government to blame here.  I’m pretty sure the whole dilemma of 21st century warfare is the asymmetric nature of stateless actors.  But that also misses the point.  Unlike the first two examples, there is no ambiguity as to who we’re dealing with.  The people who want to build the Islamic center are American citizens.  They are us.  They are We, The People.  And they have every right to worship anywhere they damn well please.

So if the debate isn’t about the legality of the ground zero mosque, then what is it about?  If this is a normative debate about the propriety of an Islamic place of worship near a culturally sensitive location like ground zero, what is the dissenters’ proposed course of action?  Certainly they have a right to express their personal disapproval of the construction.  The First Amendment protects that, too.  But pretending that the dissenters have any sort of rebuttal should those in New York ignore their rebuffs and proceed with the establishment of an Islamic center is disingenuous at best, and it is more likely dangerous.  What would the opposition encourage in the alternative?  A modern-day American Kristallnacht to show our solidarity in opposing the very ideals upon which this nation was founded?  For God’s sake—for our sake— I hope not.

If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.  The functionaries of every government have propensities to command at will the liberty and property of their constituents.  There is no safe deposit for these but with the people themselves; nor can they be safe with them without information.

This admonition was imperative to sustain the ideals upon which our country was founded when Jefferson wrote these words at a time that marked the twilight of the founding fathers’ generation and the infancy of our nation.  Jefferson was primarily concerned with maintaining a free press and eradicating illiteracy when he wrote this, and in this modern age we have certainly taken heed of his warning in these respects.  But that is not to say that his words carry any less meaning for our generation.  Today we are plagued by a threat to our liberty that is every bit as dangerous as those of Jefferson’s time, but it is a plague that each of us has the ability to cure.  The threat is our own apathy.

I encourage anyone reading this who takes Jefferson’s warning seriously to please find the time to read The Washington Post‘s “Top Secret America.“

If I could extract only one sentence from the wealth of information compiled in this multi-part exposé to vivify Thomas Jefferson’s words for our generation, it would be this:

Every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls and other types of communications.

Pay attention.  Stay informed.  Find the time.  This is the responsibility that comes with our freedom.

If the forgery does not involve a dollar amount, the person is guilty of a misdemeanor under the jurisdiction of the magistrates or municipal court, notwithstanding the provisions of Sections 22-3-540, 22-3-545, 22-3-550, and 14-25-65, and, upon conviction, must be fined in the discretion of the court or imprisoned not more than three years, or both.

Allowing magistrates, who in South Carolina are not required to have a law degree, to deprive citizens of their liberty for 30 or 90 day sentences is considered to be an imperfect necessity, but to bestow magistrates with the ability to incarcerate a person for three years raises more serious concern.  While this necessity may be debatable, the constitutionality of our state’s failure to promptly appoint counsel to defend those tried in magistrate court is not.  To understand the issue, it is necessary to examine a line of Supreme Court cases beginning with Argersinger v. Hamlin, 407 U.S. 25 (1972), and continuing most recently with Rothgery v. Gillespie County, 554 U.S. ___ (2008).  

In the aftermath of the Supreme Court’s landmark decision in Gideon v. Wainwright, 372 U.S. 335 (1963), just how broadly the newly upgraded Sixth Amendment right to counsel should be applied was up in the air.  The Court drew the line at offenses for which “actual imprisonment” is imposed in Argersinger, holding:

[A]bsent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.  . . .  The run of misdemeanors will not be affected by today’s ruling. But in those that end up in the actual deprivation of a person’s liberty, the accused will receive the benefit of ‘the guiding hand of counsel’ so necessary when one’s liberty is in jeopardy.

The Court reaffirmed this holding in Scott v. Illinois, 440 U.S. 367 (1979), a case in which the defendant, though facing a possible sentence of up to one year, was only fined $500.  The Court held that the mere possibility of imprisonment was not enough to trigger the attachment of the right to counsel:

We believe that the central premise of Argersinger—that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment—is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel.  . . .  We therefore hold that the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense.

The line drawn at “actual imprisonment” was tested most recently in Alabama v. Shelton, 535 U.S. 654 (2002).  In that case, the defendant was sentenced to thirty days suspended on two years probation, but he was not represented by counsel at his trial.  Importantly, the defendant in that case was repeatedly warned by the trial judge about the dangers of defending himself pro se. However, critical to the Court’s holding—and to the analysis of the right in magistrate court—is that the trial judge at no time offered him assistance of counsel at the state’s expense, but it nevertheless imposed a suspended sentence that, if activated, would result in actual imprisonment.  Thus the Court held:

Alabama concedes that activation of a suspended sentence results in the imprisonment of an uncounseled defendant “for a term that relates to the original offense” and therefore “crosses the line of ‘actual imprisonment’” established in Argersinger and Scott. Shelton cannot be imprisoned, Alabama thus acknowledges, “unless the State has afforded him the right to assistance of appointed counsel in his defense.”  . . .  We confine our review to the ruling the Alabama Supreme Court made in the case as presented to it: “[A] defendant who receives a suspended or probated sentence to imprisonment has a constitutional right to counsel.”

Which brings us, finally, to the Court’s most recent analysis of the Sixth Amendment right in Rothgery.  An analysis of Rothgery must begin by pointing out that nothing in that case establishes a requirement for the actual appointment and presence of counsel in the absence of a post-attachment critical stage once adversary judicial proceedings have begun.  The only issue addressed by the Court in Rothgery is when the right formally attaches.  The brief facts of that case are that an arresting officer filed a complaint with a magistrate judge that accused the defendant of committing a particular crime, which prompted the magistrate to take legal action in response by setting the terms of bail and ordering the defendant locked up.  The Court found this sufficient to trigger the attachment of the right to counsel and held:

Attachment occurs when the government has used the judicial machinery to signal a commitment to prosecute as spelled out in Brewer and Jackson. Once attachment occurs, the accused at least is entitled to the presence of appointed counsel during any “critical stage” of the postattachment proceedings; what makes a stage critical is what shows the need for counsel’s presence.  Thus, counsel must be appointed within a reasonable time after attachment to allow for adequate representation at any critical stage before trial, as well as at trial itself.  . . .   [A] criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.

So, to summarize, the Sixth Amendment right to counsel attaches when a person is accused of a crime and subsequently has restrictions imposed on his liberty (e.g., when a defendant in magistrate court is charged with a misdemeanor and can’t make bail), and a person cannot be sentenced to a term of actual imprisonment unless the State provides the accused with an attorney to defend him (e.g., the indigent charged with a jailable misdemeanor cannot be sentenced to, say, 30 days time served without being offered appointed counsel).  This is the Sixth Amendment right to counsel that the Supreme Court has delineated, and South Carolina does not recognize it.

The problem has been pointed out elsewhere, but it can no longer be ignored in light of the exacerbating provisions of S1154.  Indeed, Steve Henry, an attorney in Greenville, has been working to combat the problem since 2002.  He won a major victory last year in which all five of the Thirteenth Circuit’s judges signed a standing order mandating that each defendant in magistrate court who cannot post bond must not only be generally informed of his right to counsel—the accused must be specifically asked prior to detention if he wants the assistance of appointed counsel.  If so, the magistrate judge must immediately fill out the appropriate paperwork, and the defendant must be screened for eligibility for appointed counsel within 48 hours (with appointment to follow immediately after screening, if eligible).  Thanks to Steve Henry’s efforts and the judges of the Thirteenth Circuit’s actions, the Sixth Amendment right to counsel is being upheld in the magistrate courts of one corner of our state.  But the last time I checked, the Constitution applies everywhere else, too.  It’s time for South Carolina to recognize the right to counsel for indigents whose liberty is restricted in the most serious sense of what those words mean—actual imprisonment—for the failure to post bond in magistrate court.

The confusion, recently pointed out by Bobby Frederick over at South Carolina Criminal Defense Blog, is with S.1154′s savings clause.  Because it is drafted in broad terms that reach far beyond S.1154′s content to cover several irrelevant scenarios, the clause is a bit vague about how the act should be applied to cases coming down the pipe.  Its language suggests it should be applied prospectively, but the caselaw sends mixed signals and contradictory sections within the act further compound the confusion.  The text of the savings clause is as follows:

The repeal or amendment by the provisions of this act or any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release, or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide.  After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.

It’s quite a mouthful, and it’s problematic for a few reasons.  The most obvious source of confusion—and the easiest to clarify—is in the very first sentence.  If you missed it the first time through, here’s a hint: What is the subject of that sentence?  If you answered “the repeal or amendment,” then you get an A for effort, but those who think outside the box will note that the independent clause in this sentence should actually read “the repeal or amendment of any law” (and not “or any law”). You see, in typing up this clause, it appears that someone’s index finger landed a few clicks north of the the DZ—the ”F” key—and ended up in the no man’s land of the “R” key.  As any law student can tell you, such errors lie beyond the saving grace of spellcheck (and instantly betray your disregard for relics of the old school like rough drafts and proofreading).  Thus, we are left with the inchoate introduction: “The repeal or amendment by the provisions of this act or any law . . . does not affect . . . .”  But hey, it’s no big deal.  We all know what the legislature was trying to say, so all we have to do is agree to collectively substitute “of” in the place of “or” and bingo-bango: problem solved.

Of course, since the legislature was attempting to reuse a savings clause it’s been sprinkling on its bills lately, it could have avoided all of this confusion if only someone had been keen on the hot new “copy + paste” trend that’s been sweeping through the ranks of the techno-savvy computer enthusiast elite.  Copy + paste legislative drafting certainly would have been a quick fix for our first problem, but it is also the cause of a second, more insidious source of confusion.

The use of boilerplate language is hardly novel in the legal profession—the fine print is quintessential amongst the lawyer’s tools.  Similarly, attorneys are constantly engaged in the process of recycling familiar building blocks of legal writing.  While the practice of pilfering previous writing may be rather innocuous, the wholesale importation of one-size-fits-all legislative drafting can cause problems.  S.1154 has a big one of these problems.

In State v. Dickey, 669 S.E.2d 917 (S.C. Ct. App. 2008), the court held that a previous iteration of S.1154′s exact savings clause applied the act in that case prospectively to offenses occurring on or after the act’s effective date—which was upon approval of the Governor.  At first glance this appears to be dispositive, but Dickey is easily distinguished.  The act in Dickey, just as in S.1154, became effective “upon signature of the Governor,” but whereas that effective date controlled the entire act in Dickey, S.1154 became effective upon the Governor’s signature only as to Part I.  Part II, on the other hand, “take[s] effect on January 1, 2011, for offenses occurring on or after that date.”  The legislature’s inclusion of that qualifier can only mean that it intends Part II to be prospective and not apply to cases coming down the pipe.  But if that is how the legislature manifests its intent for the act’s prospective application, why did it omit this qualifier from the sentence immediately preceding it regarding Part I?  Furthermore, the vast majority of Part I is devoted to restructuring various offenses’ sentences.  Surely the legislature recognized the importance of including an “on or after” qualifier for Part I if it intended that part to also apply prospectively given that the court has consistently held, most recently in State v. Varner, 423 S.E.2d 133 (S.C. 1992), that “a criminal defendant receives the benefit of punishment mitigated by legislative amendment . . . when the amendment becomes effective before sentence is pronounced.”

Unlike the clause’s typo, this is absolutely a big deal.  We don’t know what the legislature was trying to say, and invariably, we aren’t all going to agree to collectively insert “for offenses occurring on or after that date” for the sentence reductions of Part I—especially considering the implications for both the state and defendants in cases pending as of June 2, 2010.  The problem with the boilerplate savings clause in S.1154 isn’t that it should have been copied and pasted.  The problem is that it shouldn’t have.

Recently, I’ve been researching issues related to privacy and the Fourth Amendment in preparation for a law review article I intend to write about how our ideas about each will adapt to rapidly changing technologies in the information age.  As it turns out, my interest in privacy and information security has attracted the attention of others who are very interested in my interest in privacy and information security—so much so that I’ve received an offer in the mail for discounted textbooks on each of these topics.  That’s right, someone has been keeping tabs on all the reading I’ve been doing on the Internet about online privacy, and now they’ve tracked down where I live so they can sell me books on the importance of privacy.

Feel free to take a moment to reflect on the situation if you need to—I realize the irony is almost as subtle as the sarcasm in this sentence.

I’ve been using three different commercial research services, so I can’t say with certainty which is responsible for what I’m sure will be the most humorous instance of data mining I’ll ever be subjected to.  Of the usual suspects, however, I’ve relied primarily on HeinOnline, and if I had to put money on which is to blame, Hein would be my bet.  I did a little snooping of my own, but after scouring their website, I’ve been unable to find even a trace of anything resembling a privacy policy.  The closest thing I could turn up was a link at the bottom of the official HeinOnline Wiki purporting to direct me to a privacy policy, but all it contained was a shameless admission that  “[t]here is currently no text in this page.”  My disappointment upon reading this evaporated by the end of the sentence, as being a Wiki, what followed was a link to edit the very page containing the privacy policy that didn’t exist.  I won’t publicly disclose what nefarious plots raced through my mind in the seconds it took me to click that link, but alas, access was denied to non-administrators.  For a moment, I thought I would have my revenge and would be able to write a privacy policy that would very prominently highlight my disinterest in their interest in my interest in privacy, but I may yet have an opportunity to pull the wool over those prying eyes.

The one useful bit of information the site provided was a complete listing of all Hein executives’ email addresses and phone numbers.  Maybe I’ll send this textbook catalog their way with some suggested reading of my own: Privacy Law, Chapter Six: Developing an Online Privacy Policy.

What do you think, is the irony too subtle?

Once again, Ars has put up a top shelf interview that gave me the itch to write.  The first of a two part interview about cloud computing covers a range of topics, but I’d like to comment on the notion of the cloud as a shared memory.  In the final exchange of the conversation between the interviewer and his subject, the two agree that, while the cloud pools humanity’s collective memory by serving as a permanent repository for all our combined knowledge, it concomitantly drains each individual of his or her cultural identity.  While the interconnectedness of what the average Netizen reads on a daily basis has grown exponentially, they explain that this interconnectedness has also shifted laterally.  The deep cultural heritage passed down through our masterful storytelling ability is being forgotten, erased by a preference to reference each other rather than remember our past as we spin new tales.  The two conclude that this leaves each of us less distinctive, presumably fading society’s cultural tapestry in the process; our end is cultural bankruptcy. Thus, as we increasingly come to rely on the availability of such an unfathomably deep ocean of knowledge as the cloud in our daily interactions, our own reservoirs of retained information begin to dry up. The Renaissance Man devolves into an oaf sitting with a glazed over stare in a baby pool of banality.

I don’t consider this to be a very controversial outlook in the short term, but I wonder if we might see a reversal of this trend as the first generation born into the information age ages.

I admit that when I engage others face-to-face in a topic I haven’t read real-live books about, I often struggle with a feeling that I know the topic fairly well, and yet I can’t quite seem to lay a proper foundation to support my argument.  I’m stripped of my superpowers: Googling and The Link!  (Perhaps I need an iPhone)

But when I write, I stand on the shoulders of giants—and not the oafish kind.

I can craft emails that unleash rants fueled not by hyperbole, but hyperlink.  Grammar, spelling, word choice—vocabulary, given that for years now I’ve instantly looked up every alien word encountered in cyberspace—all approach perfection as a linear function of time spent e-educating myself.  No topic is ever over my head, provided the party with whom I am engaged in correspondence has enough patience.

Thus, my ability to communicate meaningfully has developed asymmetrically along two axes: the instantaneous and the intermittent. I can engage in either form with equal capacity using information I’ve retained from my book learnin’, but when off topic, I’m only fluent in the latter medium.  Increasingly, though, I find myself drifting in that more stable direction. As a child I spent hours instant messaging each day (though I’d refuse to pick up the phone). Today, however, I’ve become disenchanted with the deluge of Facebook and Twitter. I would much prefer to spend an unnecessary amount of time on a single comment to a thoughtful article than I would on an unnecessary amount of comments in the echo chamber of tweets and statuses. When we all begin to suffer from the inevitable information overload, I am confident that we will collectively step away from the edge before diving into that baby pool. We will get bored. We will stop scanning. We will get old, and slow. And most importantly, we will be made rich by the wealth of knowledge we will have amassed.

I’m not saying we’re going to suddenly drop this great riding lawnmower we’re all strapped into from rabbit straight down to turtle in one fell swoop, but I do think we’ll learn to compliment our chatter by plotting a course along that more stable axis.

Having just started this blog, I deployed Google Analytics to aggregate data representing the number of views my site receives.  I soon found out, however, that Google Analytics is quite a robust little tool and readily serves up information about how visitors are directed to my site, what pages are viewed once visitors arrive at my site, how much time a visitor spends viewing my site, and admittedly, even the geographic location of each visitor to my site.  The complete list is considerably more thorough, but honestly I’ve yet to dig through it all.

It took just under a week to turn me from Defender of Privacy in the Information Age into the Lidless Eye of Sauron:

The Eye: that horrible growing sense of a hostile will that strove with great power to pierce all shadows of cloud, and earth, and flesh, and to see you: to pin you under its deadly gaze, naked, immovable. ¹

This certainly was never my intent; I merely wanted to see if anyone is actually reading this thing.  (And, to date, nobody is)  In my defense, I did opt out of allowing data to be shared with anyone other than Google, and I don’t run any information hungry ads either.  Still, I suppose if I’m to go about trumpeting myself as a privacy advocate I should probably ditch the traffic analyzers and just write as though nobody is reading.  Of course, nobody is reading, but at least this way when I’m a household name on the Internets it won’t go straight to my head.

The article correctly points out that the biggest obstacle facing the recognition of a Fourth Amendment right to privacy in the information we store in the cloud is what is known as the third party doctrine. In a case analogous to storing email, photos, and other personal information with service providers like Yahoo! and Google, the Supreme Court in Smith v. Maryland invoked the third party doctrine in declining to recognize a right to privacy in telephone numbers dialed and subsequently routed through a telephone service provider’s switching equipment. The Court reasoned that when a phone call is placed, the numbers dialed are “conveyed” to the telephone company. At that point, a reasonable person should recognize that those numbers will be monitored and recorded by the company’s equipment for billing and other purposes. Because a person voluntarily gives the phone company access to that information by utilizing its services, she cannot reasonably expect that information to remain private. It is important to point out, however, that the Court’s decision turned on the fact that the actual contents of the conversation were not monitored or recorded. Consequently, any expectation of privacy in the actual conversation would still be reasonable.

This is the problem facing communications and information stored in the cloud.  Under the Court’s precedent, information that a user should understand will be monitored by a third party renders an expectation of privacy in that information unreasonable, thereby excluding it from Fourth Amendment protection.  Even putting aside a fear of hackers,  system administrators, and law enforcement gaining access to information stored in the cloud, it is common knowledge that most of this information is subjected to at least some superficial level of electronic monitoring. The contents of email stored in Gmail, for instance, are regularly scanned by a program designed to identify keywords to generate targeted advertising for that user. Although we may consider an impersonal scan performed by a program to be rather innocuous relative to an actual human being’s reading the same information, this distinction seems immaterial to the Court in Smith: “The switching equipment that processed those numbers is merely the modern counterpart of the operator who, in an earlier day, personally completed calls for the subscriber.” The question is whether the current Court, when it eventually takes up the issue, will distinguish that case on the grounds that the monitored information wasn’t substantive and recognize an expectation of privacy in the monitored contents of emails.

In the comments to the article, many people argued that nothing sent over the Internet or stored in the cloud is truly private. Those commenters pointed out that hackers, sysadmins, and police can, at any time, gain access to personal information stored in the cloud if inclined to do so (regardless of the legality of doing so). In response, I asked the question, “Should the fact that it is merely possible for another to access your information render any expectation of privacy in that information unreasonable?”

With enough effort, a hacker could crack almost any person’s account. Does that make it unreasonable for a person to trust, nonetheless, that her stored information isn’t totally exposed?

If a person’s data becomes corrupted, an admin might have to access her account to restore it. Should we allow such rare occurrences to control our daily expectations?

Law enforcement officers may currently be able to obtain this information with relative ease, but isn’t that a circular argument for denying this information Fourth Amendment protection?

While the answers to these questions seem to me to be rather obvious, I don’t think they persuaded the more tech savvy commenters.  Many seemed to view the problem in terms of absolutes, and that is hardly surprising.  To the computer helpdesk employee who cringes every time she sees the infamous username/password post-it note defiantly stuck straight to the front of that monitor–or to the sysadmin constantly plugging security holes in our swiss cheese software–or to the kid down the street earning his chops on his neighbor’s unsecured wireless network, anything and everything you put on the Internet is accessible.  If you want to keep it private, keep it offline.

Others, though not necessarily the author of the article, have an equally rigid but slightly more optimistic view of privacy in the cloud.  They view technology as Homer Simpson does beer: the cause of –and solution to–all of life’s problems.  Armed with a silver bullet, they would righteously enforce a policy of absolute exclusion.  To these stalwart defenders, encryption will be the panacea of privacy.  I, for one, consider it a sword of Damocles.

The notion that anything short of infallible security measures fails to give rise to a reasonable expectation of privacy would render that right a paragon of impeccability beyond reach in the Information Age.  We must affirm that, even in the face of uncertainty, we are reasonable in believing that privacy can be maintained in an era of unprecedented vulnerability. Because a policy that demands abstention from modernity as the price of security is one that none of us can afford.

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