I do not see how a decision maintaining greater rights for the people is a bad thing.
The 4th amendment has been seriously damaged already by the supreme court. This is a narrow decision and police can still get a warrant to get this information. I do not see how anyone could view this as a bad decision.
As a matter of fact, yes, we do. That’s the basis of, for example, campaign finance laws, and other laws that, depending on place and circumstances, may regulate or limit the amount of political influence that can be wielded through mass media. That conservatives generally seek to undermine such laws doesn’t mean that there isn’t a rational basis for them that is consistent with the philosophy of a living constitution that reflects technological and social changes.
Because it is not just about results. As I said, I agree with the result. However, in Fourth Amendment cases, lawyers, judges, and police officers look to the Supreme Court for guidance in future cases.
If a client comes into my office and says that the police did X, y, and Z, then I need some reasonable case law to be able to say that in my opinion the police were right or wrong. Judges need that as well. Indeed, probably most importantly, the police need that guidance when dealing with citizens every day. Further, we all need that guidance so we can know what we have which is private and which is not.
My objection to this free floating test that the majority has made is that the answer to many more cases in the future will be “Hell if I know.”
Further, it is not a victory for some people. If you are like me and wake up, go to work, go to court, stop at the grocery store, and go home, I really don’t care if you pull my cell phone records. But I do value the privacy in my bank records, which this decision leaves open for police to rummage.
Not to hijack, but I disagree. Suppose in the election of 1800 Jefferson and his supporters had piles of money to throw into the campaign but Adams and the Federalists were poor. The same argument could have been made that it was unfair that Jefferson had more handbills and circulars to hand out than Adams because of money.
Assuming that Bricker is correct there, I don’t think your comment is valid in this instance.
I would assume this happens a lot when the supreme court charts new territory without a lot of guidance. I suspect that, over time, cases will be brought and the extent of this ruling will get hammered out by the courts. For the near future you and other attorneys will be able to argue where those lines should be drawn.
I agree with the bank records.
I have a hard time with the tracking though. What if someone wanted to run for sheriff and the incumbent sheriff decided to pull the GPS records to see if their opponent is doing things that would hurt their campaign (e.g. visiting a mistress)?
I hear this notion come up with whether Alexa/Google Home are spying on you. The usual answer is the NSA will be really bored listening to me talk with my spouse. I don’t do anything wrong so why would I care? But I do. If you were at my door with a stethoscope listening to my conversations I would care even though the conversations are completely uninteresting to anyone else.
I think the default should be that we should care. I do not see how giving the government ever greater powers to spy on you is in your interest.
I know you disagree with the principle, as conservatives generally do. But the point is precisely that television and radio in virtually every home presents a fundamentally and qualitatively different means of communication and persuasion than a bunch of handbills. The opportunity for doing a direct in-your-face multimedia pitch, doing it frequently, and blanketing the country with it is far more effective and practical than handing out pamphlets, and for that very reason has a much higher associated cost. Thus, technology has raised to unprecedented heights the effectiveness with which someone can influence public opinion, while at the same time raising the costs of doing so to a more exclusionary level that some might not be able to afford but which others can exploit aggressively. To put it another way, new technology has amplified the power of money to influence, enabling it to do completely new and much more powerful things.
And that’s why the progressive view is that the law should intervene to level such a potentially extremely biased playing field, because the public interest at stake is important enough. It’s not about guaranteeing absolute fairness, which will never be possible, just like privacy laws are not about preserving absolute privacy in all circumstances. In the same way, privacy laws in my view should intervene when the potential invasiveness of centralized information and new technology becomes a significant threat to the level of privacy a person could normally and traditionally expect.
To address your second point first, I agree that none should be open for government inspection, even if I’m doing nothing wrong.
But that gets back to the problem with your first point about attorneys arguing in the future where the line will be drawn.
The rule we have now is that bank records are fine without a warrant, but cell phone data is not because the Court believes that the latter is far more intrusive. So we start from a premise that many people do not accept from the outset.
So let’s say a new case comes up that deals with the warrantless seizure of a person’s medical records. Is that more intrusive than cell phone data or bank records. If you ask ten different people, you get different answers.
If my cell phone data is pretty boring but I went to my doctor for Viagra, jock itch cream, and my herpes suppression medication, I would believe that the medical records are far more intrusive.
If my cell phone data would show my semi-weekly trip to the whorehouse but my medical records would only show my blood pressure results from my six month checkup, then I believe that the cell phone data is far more intrusive.
The only thing we can do is guess what the judge will value more. Now, some people smack there forehead and basically say “That’s his job! That’s why he’s a judge!” and then look at me like I’m an idiot. I disagree. He has the job of a judge because of his expertise in applying the law. In making this value judgment, he is no better at it than any poster in this thread.
How do you square that with cellphone data tracking you all the time, even when you are in private areas?
Here’s a factual question: Before this case came up, had the phone company made it known (perhaps in its terms of service) that it would comply with all law enforcement requests for information, even without a warrant or subpoena? Yes, I know that the vast majority of people never read those terms of service before just clicking “Accept”, but if it was in there, it’s at least possible for some citizen watchgroup to notice it and publicize that fact.
Another question: In order to use the location information as evidence against Carpenter, the police needed to find someone who was at all of those locations at those times. I can see three ways this could have happened: First, the police could have asked the phone company for all of their records, for everyone, and then searched through them. Second, the police could have asked the phone company to do the search, and only report the results of that search to the police. Third, the police could have already suspected Carpenter for other reasons, and specifically requested his information. Does anyone know which it was?
The reason it might be a bad thing is that there’s a significant chance that Carpenter was, in fact, an armed robber, and that as a result of this decision, he (and others like him) might escape justice, and be free to continue to commit crimes. The question isn’t just whether there’s a reason for the police to do this: There clearly is. The question is just whether it’s a good enough reason to outweigh the arguments against.
Taken to its logical conclusion this argues for the most restrictive police state we can manage in the interests of “protecting” the people.
No, the question is whether that kind of information should be available without a warrant, whereby whether the reason is “good enough” to justify such a privacy violation is subject to judicial scrutiny.
There is no reason to think that this would be done, though, and other providers could get more business by not voluntarily turning it over.
Short version: Federal law provides that cell phone providers are to keep customer information private unless (among other things) presented with a subpoena which, before being issued, is presented to a magistrate to determine a “reasonable probability” that it is relevant. That’s what happened here. The question was is this procedure sufficient. The Court held that it was not, and that a warrant needed to be issued based upon probable cause.
Your concern about the exclusionary rule has been shared by others and I disagree that its elimination would be the first step down the road to tyranny. I support the rule, but there is a societal risk of allowing known, dangerous criminals on the street because a rookie officer made a mistake.
Ah, but consider Chronos’ #2 scenario. If the police just ask the phone company to search for any phone that was at all of the locations at certain times and give them the results, and they return the single phone number of the bank robber, is that really violating anyone’s privacy unreasonably?
I’m sort of torn on the issue, myself.
(And damn you Chronos, I was literally about to make the same post, wondering what the details are behind the actual case.)
The case itself shows why this could be a “bad” decision.
In the case, the perpetrator was identified as being involved for certain when police asked the mobile phone companies to turn over cell-phone location ping data on several phone numbers that they had been given by already arrested suspects. They were using 18 U. S. C. §2703(d), which allows the Government to compel disclosure of such records whenever it " ‘offers specific and articulable facts showing that there are reasonable grounds to believe’ that the records sought ‘are relevant and material to an ongoing criminal investigation.’ ” (Carpenter v. United States, 585 U.S. ____ (16-402) (2018) at page 3 of the slip opinion) That’s a much lower level of proof than the proof required to obtain a warrant, which is that probable cause exists to believe that the requested information is indeed relevant to an actual crime that has been committed. The standard under which the Government was acting is more akin to civil discovery proceedings; in other words, they didn’t have to show that the records relating to each phone number they wanted to search were actually likely to have been related to some specific crime. All they had to do was say, in essence, “we believe that, if you give us this info, we’ll be able to use it to nail whoever did this bad stuff we’re investigating.” And, indeed, that’s what happened.
So, if the Government had to rely upon first obtaining a search warrant, they would have to have already established that Carpenter was likely to have committed a specific crime, and that obtaining his cell phone location data would reasonably be related to that crime. Which they might not have been able to do, meaning that Carpenter might still be free today to continue to try and steal cell phones from Radio Shack stores (ironic, no?).
To me, it’s not that THIS case really represented the Government doing “bad” things. But one can easily see the Government with a slightly less strong case doing much the same thing, only with a wider net, to try and catch the perpetrator. That, in essence, is what motivated the Chief Justice to slam that door now.
Gorsuch’s background in English law is apparent is his dissent.
I don’t think anyone has yet answered you here.
They didn’t come up with a new “rule”, per se. What they said was that THIS type of data doesn’t fall under previously identified doctrines exempting the need for a warrant to conduct the search. So, we know what would happen with any further effort to obtain exactly the same type of data. We have no really good clue what would happen with any other case, because the Chief Justice in his opinion said, "I’m not saying that anything we said previously was wrong (you don’t need warrants now for anything you didn’t need one for before), and I’m limiting this holding to the type of data in this case (I’m not implying that any other data might need a warrant, specifically, do NOT read this opinion to mean you need one for “real-time CSLI or ‘tower dumps’ (a download of information on all the devices that connected to a particular cell site during a particular interval)”).
Always helpful when the Court refuses to actually draw bright lines. :mad:
Justice Gorsuch has been making some very “interesting” references to his opinions on property law and contracts law lately. I think he’s pretty far out in some other playing field when it comes to how he looks at large swaths of Constitutional Law. Gonna be interesting to see how that resolves itself over the years. :dubious:
The argument would be that by owning a cellphone and having it on in your house, you are using the device to broadcast your location, whether consciously or not. It’s not like the government planted this device on you, you bought it and are using it.
The counter-argument, which I agree with, is that because these devices are such an integral part of living in a modern society, a person should not have to be presented with a choice of whether to live like its 1975, or give up all privacy in his movements.
But prior case law, as Bricker noted, says that anything you make public is not covered by the Fourth Amendment. If we need to change that, then we need to craft a rule that can be applied to all other public stuff. If we do what the Court did and just talk about how different cell phones are, then we are not left with any guidance how to see if something is indeed “different” except to be arrested, convicted, and spend about five years in prison until a majority of the Court decides that what you had is pretty different too.
But isn’t the Fourth Amendment different, since it already has that baked in?
I figure you could, in one breath, argue that the First Amendment flatly states that Congress Shall Make No Law Abridging Freedom Of Speech — and then say, with no inconsistency, “oh, does this other part only apply to unreasonable searches? Well, then, that’s inherently a judgment call; it’s not like the Senate’s age requirement; this was always going to involve looking pensive while stroking chins.”
Exactly.