Muni network ownership and the Fourth

Rob McEwen rob at
Tue Jan 29 16:46:46 UTC 2013

On 1/29/2013 10:59 AM, Jay Ashworth wrote:
>> From: "Rob McEwen" <rob at>
>> (C) The fact that the Internet is a series of PRIVATE networks... NOT
>> owned/operated by the Feds... is a large reason why the 4th amendment
>> provides such protections... it becomes somewhat of a "firewall" of
>> protection against Federal gov't trampling of civil liberties... but
>> if they own the network, then that opens up many doors for them.
> Regular readers know that I'm really big on municipally owned fiber networks
> (at layer 1 or 2)... but I'm also a big constitutionalist (on the first, 
> second, fourth, and fifth, particularly), and this is the first really good
> counter-argument I've seen, and it honestly hadn't occurred to me.
> Rob, anyone, does anyone know if any 4th amendment case law exists on muni-
> owned networks?

Good question. Here is another thing to consider regarding SOME muni
network... (at least where private citizens/businesses subscribe to that

When any government entity desires log files from an ISP, and if that
ISP is very protective of their customer's privacy and civil liberties,
then the ISP typically ONLY complies with the request if there is a
proper court order, granted by a judge, after "probable cause" of some
kind of crime has been established, where they are not on a fishing
expedition. But, in contrast, if the city government owns the network,
it seems like a police detective contacting his fellow city employee in
the IT department could easily circumvent the civil liberties
protections. Moreover, there is an argument that the ISP being stingy
with such data causes them to be "heros" to the public, and they gain
DESIRED press and attention when they refuse to comply with such
requests without a court order. In contrast, the city's IT staff and the
police detective BOTH share the SAME boss's boss's boss. The IT guy
won't get a pat on the back for making life difficult for the police
department. He'll just silently lose his job eventually, or get passed
up for a promotion. The motivation will be on him to PLEASE his fellow
city employees, possibly at the expense of our civil liberties.

PS - of course, no problems here if the quest to gain information
involves a muni network that is only used by city employees.

PPS - then again, maybe my "log file example" doesn't apply to the
particular implementation that Jay described? Regardless, it DOES apply
to various government implementations of broadband service.

Rob McEwen
rob at
+1 (478) 475-9032

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