The ‘Three Rivers Rule’

The majority opinion in a recent session of court was that the Three Rivers Rule is no longer a reliable defense. The opinion was rendered not at the bar of the Supreme Court but at the Table of Wisdom (OK, we flatter ourselves. It’s a coffee shop.) around which solutions to world problems and outright hogwash are dispensed in equal measure and in equal value.

To mangle one of Hamlet’s lines, the rule is more often honored in the breach than in the observance. It was once thought that crossing three rivers before misbehaving offered a miscreant a fair chance of putting enough distance and anonymity between himself and his misdeeds for them not to follow him home.

In the electronic age, however, participants in last week’s session agreed, time and distance are not sufficient protection from detection. The title of Dan Rather’s 1977 book, “The Camera Never Blinks,” seems never more apropos than now. If you’ve been to any of the world’s major cities, New York and London for example, you likely have appeared on a camera. Closer to home, law enforcement agencies, restaurants, bars and retail businesses of every kind are likely to have surveillance equipment deployed, some of which may not be apparent to the casual observer.

The determination that the Three Rivers Rule is an anachronism came at the end of a lively (for us) discussion of one of the more unusual arguments advanced against getting the series of two COVID vaccinations.

Months before the vaccines were cleared and distributed there were those who said the whole vaccine thing was a scheme concocted by Microsoft co-founder and software developer Bill Gates as a way to implant traceable microchip devices into Americans’ bodies. The chip implantation story got legs from remarks in the British press attributed to the head of the Russian Communist Party saying “globalists support covert mass chip implantation which they may in time resort to under the pretext of a mandatory vaccination against coronavirus” as well as remarks from former Donald Trump adviser Roger Stone claiming Gates and others were microchipping people so “we could tell whether you’ve been tested” for the virus. A poll taken in May indicated that more than a fourth of those surveyed (28%) believed that story.

In perhaps a bit of convoluted reasoning, the justices of the Table of Wisdom unanimously concluded that if the government or even a private entity wants to spy on Americans, they don’t need to covertly shoot a microchip into unsuspecting Americans’ upper arms. I certainly don’t understand all there is to know about microchips, but I’m betting it would have to be significantly smaller than a chocolate chip to make it through a hypodermic needle.

They — whoever they turn out to be — already have the means to read one’s life like an open book. There is much to be learned about a person from that little hand-held computer carried in purse or pocket. You know the one we’re talking about — that little device that stores where you’ve been, where you’re going, who you talk to, who you know, what foods you like, and, oh yeah, also makes telephone calls if you push the numbers on that tiny keypad.

It is apparent that someone is collecting that data and getting it into the hands and computers of third parties. Just search a topic or look at an ad on your little hand-held computer and before you can put it back in your pocket somebody is trying to sell you something based on your browsing. We’ve pretty much accepted that as an aggravating fact of life that if you have a smart phone, somebody will try to sell you something. Extended vehicle warranty sales pitches may be the most aggravating, even if the least consequential byproduct.

But it is not the collection of that data that is getting attention now in Congress and in the national press, but rather who gets to look at it, how it’s used and more fundamentally, whether one aspect of e-commerce involving consumers and their data meet constitutional muster.

In the 2018 opinion Carpenter v. United States, the U.S. Supreme Court issued a divided 5-4 opinion that the government must get a warrant before accessing a person’s sensitive cellphone location data. In that case, police were looking for evidence to connect Timothy Carpenter to the scenes of a number of robberies and obtained months of cellphone location data from his cellphone carrier without a warrant, with the Supreme Court saying in its opinion that the Fourth Amendment protects such data.

In mid-January, Sen. Ron Wyden, D-Ore., received a memo from the Defense Intelligence Agency admitting the agency buys similar data from a broker — and does not believe it needs a warrant to do so.

“D.I.A. does not construe the Carpenter decision to require a judicial warrant endorsing purchase or use of commercially available data for intelligence purposes,” the agency memo said.

Wyden intends to propose legislation to add safeguards for Americans’ privacy in connection with commercially available location data. He condemned the current situation in which the government, instead of getting a court order, “just goes out and purchases the private records of Americans from these sleazy and unregulated commercial data brokers who are simply above the law.” He called the practice unacceptable and an intrusion on constitutional privacy rights.

He said, “The Fourth Amendment is not for sale,” but it looks like he’s a little late. Technology advances faster than the law does.

Editor’s note: Paul Holmes is editor-at-large for Northeast Arkansas Talk Business & Politics. The opinions expressed are those of the author.