How did police ever manage before cell phones existed?
Put another way, can we link the existence of cell phones to more crimes being prosecuted prior to their cell phones existing?
Also, where do you draw a line with this? How intrusive is too intrusive? The government can always make the case that a new means of snooping on its citizens will only benefit the safety of law abiding citizens.
Each bit of privacy we surrender to the government is near impossible to get back so we should be extremely cautious when giving up that up.
“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” ~Benjamin Franklin
His dissent in Carpenter is actually more protective of privacy than the majority’s approach, as I see it. He dissented because he said that the defendant hadn’t raised his arguments, but his opinion was really much more of a concurrence.
Nitpick: I read Jones as adopting your mosaic theory and the trespass theory.
You had one opinion (Scalia +3) saying trespass to chattels. Another opinion (Alito +3) saying mosaic theory. And Sotomayor saying, “Hey, you’re both right!”
That’s why I’m not sure why this opinion dances around the issue so much. From my understanding of Marks, both ideas are controlling.
blah blah blah. By your viewpoint, government should never be allowed to intrude upon what you would like to think of as “privacy”. But that’s never been the law. Nor is the constitutional law on the area that the government has to prove it has the entitlement to intrude. The Fourth Amendment has never required that. It simply precludes unreasonable searches/seizures. A well-ordered society MUST yield up some “essential Liberty”, to the extent that such “Liberty” involves being able to tell the government to go eff itself.
Indeed there is a line to be drawn. Just like free speech is not absolute there must be some curb on that right.
But with free speech we are extremely cautious about restricting that right.
With the 4th amendment you seem cavalier about giving our rights away rather than only granting to the government what is necessary to function and no more.
The government had no problem catching bad guys before cell phones. I see no reason why they now absolutely must have your location data at all times.
First of all : I thought the awl thing was a typo, but I see now it’s much more serious a problem. Don’t you know he who would pun would pick a pocket ?! And here I though you were the law-abiding type. For shame, sir. For shame.
Next, a disclaimer that I’m really no law scholar (I had to look up what trespass to chattel was) and I won’t be arguing legal theory - I’m only arguing about the practicalities and the end results.
Also, I 'member that thread, and I might even have participated. Dear lord, has it been 10 years already ? Time really does fly like a banana… pardon me while I go cry a little bit.
Now, then, to the argument : I would say that I absolutely subscribe to mosaic theory, then.
Modern life and they way technology has thoroughly enmeshed itself into our daily lives make surveillance, pro-active & pre-emptive surveillance very, very easy. “effortless and encyclopedic”, I like that phrase. And so much of what you do on a daily basis goes through third parties that I’m really not comfortable with that data to be considered free-for-all.
One example would be internet usage : as a matter of course any internet traffic must, perforce, go through one’s ISP. Even if you use Paranoid Nutcase software like Tor or process your traffic through a VPN, at the end of the day Verizon or Comcast knows that your computer sent requests to this or that website and then you downloaded this text or that image. The only way to avoid it is to only access the web by mooching off free or unsecured Wi-Fis (and I know people more paranoid than me who do do that…). Would you be OK with ISPs then routinely handing over that information to the police (or the NSA for that matter) ? The content of every mail, private message, what kind of porn you look up and when, etc… logged and tracked and indexed ?
I’m not sure how it is in the US, in France we have a law that says that private companies can only keep electronic records like these for a year max and users have an absolute right to ask for their own records in any third party database and have outdated info (or info they shouldn’t have) purged. Much like gold-backed currency, nobody ever *does *ask, and the system would go tits up if everybody did all at once, but it’s comforting all the same to know you could :).
And there’s absolutely a safety argument to be made for the police combing through your search history looking for the high school kid who looked up how to make pipe bombs or the quiet guy who spends an inordinate amount of time on incel forums to rant violently about the women in his life. Browser history, GPS data, medical data, business/financial transactions, what you say on the phone or via SMS - all this could be aggregated and tracked in order to, and I’m not exaggerating in the least here, become a very efficient crime prediction tool à la Minority Report (without even needing to add a supernatural element). Data mining algorithms are getting really good, really fast.
The problem there is that, of course, the very same data gathering and mining can (and would) be used for less pristine motives. The Snowden papers were a good illustration of this, not because they showed that the NSA further up everyone’s butts that anyone thought (although that’s good to know all the same), but because they perfectly illustrated that the people in the NSA were still people : one agent was using the NSA data & tools to keep tabs on his ex and her new beau IIRC. Now imagine when a) every cop has access to that much info on everyone, including people they don’t personally like, for any reason and b) those databases are stored in and accessed via, not superspy high tech super-encrypted devices, but a cop’s oh so easily hacked Android.
The bottomline is that yes, the government has a vested interest in knowing absolutely everything about every last citizen. And the public would also have a safety interest in the government having access to such data. But you can’t give them that power without opening the door to it being used for nefarious or simply distasteful means. So let’s not do that.
You mention CCTV and the adjunction of rapid face-recognition software ; that’s concerning to me as well (and it’s only a matter of time, if it isn’t already in place), all the more so that the steps one would have to take to counter that kind of surveillance would kill my social life stone dead even more efficiently than my depression does. Razzle-dazzle face camo does not look pretty, although I will admit it has that cyberpunk je-ne-sais-quoi, the pink mohawk Shadowrun aesthetic that’s been sorely missing from our current dystopia :).
So it seems you and I are on opposite sides of that spectrum : the judge says “We do not . . . call into question conventional surveillance techniques and tools, such as security cameras.” and you say “but why ? And if that is OK, then surely the next step is OK too !” while I say “Um, maybe we *should *call them into question too, now that you mention it ?”
I was surprised in reading this thread that Gorsuch dissented. I did not read the decision (or the dissent), but I did listen the arguments and I thought that two points raised by Gorsuch really were convincing and actually carried the argument that the “third-party doctrine” needed to be thrown down. I was further surprised that “Justice Bricker” would have ruled the other way. The two points (I probably will not do them justice, I am not a lawyer, nor have I ever played a lawyer on TV - note I am paraphrasing here):
[ol]
[li]The statute that is controlling to cell phone communications (Stored Communications Act?) states that the cell phone data is the property of the customer and shall not be shared with other entities without the consent of the the customer. It then goes on to state that an exception to this is sharing the data with the government in accordance with the law. The problem here is that the statute cannot set the terms of the 4th amendment; if, as the statute says, the electronic cell phone data is the property of the customer, then the government needs a warrant to view the data in accordance with the 4th amendment. This is not the case with other third-party doctrine cases in that the government in those cases was wanting to view the companies property (transaction records, phone routing actions, etc…) not the statute defined property of the customer. [/li]
If Justice Gorsuch is correct and the law defines cell phone data as the property of the cellphone holder, then a warrant should be required to access this data.
[li]The second point was similar, but different enough that I think it deserves enumeration. Justice Gorsuch compared the government’s argument that third-party doctrine made it acceptable for the government to get basically any data about an individual from a third party to the writs of assistance under British rule that led to the writing of the 4th amendment. I agree that the parallel was clear and disturbing. The government cannot legally search my car or house without a warrant and probable cause, but third party doctrine (taken to its logical extreme) gives them permission to get all the records from my auto-mechanic, house cleaner, and home security system vendor including any video that may have been recorded by the cameras they monitor for me? This seems to me a clear perversion of the intent of the 4th amendment. As we outsource more and more of our home / life management with smart appliances, thermostats, and (the abomination that is) smart devices like Alexa or whatever the 4th amendment won’t mean much if the government can just request our information from a third party and get it without any due process because it is a third party that has it.[/li][/ol]
Finally, and on a related topic, I was disappointed in some of the arguments where they were looking for other exceptions to the third party doctrine; cases where information could not be obtained by the government from a third party without a warrant. Two very clear exceptions spring to my mind, health records and legal communication. I believe attorney-client privilege is based on the 5th amendment, while the protection of health records is base on the 4th. That said, the health exception (Jones? vs US?) has more to do about forcing an invasive procedure against your will and your 4th amendment right to be secure in you persons, but I would be very interested to see if the government could subpoena all your blood records for the last 5 years from your doctor to look for drug usage. I bet they could not get away with it even though you willingly gave that blood to a third party and it is now in their possession…
You’ve missed the whole point. Your initial question was about how insisting upon “maintaining greater rights for the people” could be bad. You didn’t formulate the question as, “I am always opposed to chipping away at the rights of individuals unless there is some overriding concern that compels us to do so; what is that compelling interest here?” You asked how it could possibly be bad. So I pointed out exactly how it could be bad. I didn’t say that the decision in Carpenterwas either necessary or good, I simply pointed out that this criminal might still be free under the standard advocated by the majority here, which we will agree, I presume, would be a “bad” result.
My follow up post holds your toes to the fire on this distinction. You quoted the famous Franklin line. But you articulate no standard by which you consider it necessary to grant the government some slice of what might otherwise be considered individual privacy rights. But you certainly concede that some such slices must be taken. What, then, do you consider to be your touchstone for allowing the government to intrude upon our individual privacy for the purpose of keeping us as a society safe? And how does that apply to the case at hand?
For what it is worth, I personally agree with the outcome of the case. But I criticize the majority’s opinion because it doesn’t do a very good job of establishing the touchstone for making that decision. I would prefer a decision that applied some rationale that could be used to evaluate future cases of limitation on government power in searches and seizures. I find this important because I agree that the government must at times be able to search things without obtaining a warrant first, mostly because I do not ascribe to your as yet unsupported assertion (based on English common law and American constitutional law) that the Fourth Amendment somehow establishes a rule that the government can only obtain what is “necessary to function and no more.” (We won’t even get into the issue of the fact that what you think “necessary” probably isn’t what many others think “necessary”).
But as for the basic reason of my posts, you asked, how can it be bad? I provided you an example of how it can be bad. Obviously, in your mind, the issue isn’t “which is better?” but rather “why should they get their pitty paws on any of my stuff?”
I think you have to be VERY careful about letting Justice Gorsuch re-phrase this as a case about property and property rights. Because in that case, all that has to happen to let the government collect these records without warrant would be for the Congress to change the law to assert that the property right in the records in question was not with the cell phone user. In an era in which we have Congresses and Presidents wanting to use very intrusive collection methods to fight “terrorism”, letting them define the extent of our expectation of privacy with how the law is written is not a good idea.
Your pedantry is noted. You got me for not being precise enough while ignoring my other posts. Internet point for you.
You likewise have not delineated where the line is drawn. As Kobal2 mentioned above the government can make a case that the more it knows the better it is able to catch the bad guys. But at what cost does such government power come at?
You have not “pointed out exactly how bad it could be” in your post because you (wrongly) presumed catching the bad guy is the ultimate good in this case and letting him get away is bad.
You have not considered the broader implication of giving the government a sweeping power to track citizen’s whereabouts in order to achieve that.
Blackstone’s formulation says, “It is better that ten guilty persons escape than that one innocent suffer.” This is a cornerstone of western common law. It tells us that, as a society, we emphatically DO NOT deem catching the bad guy to be the highest goal to the exclusion of all else. It also assumes the corrupting influence power has and that it must be guarded against.
So my point is the default judicial stance ought to be to grant the citizens as much protection from the government as is possible. The government should need to show a very compelling reason for curbing those rights.
As I mentioned before I do not see how the government can make a case that it needs warrantless collection of a citizen’s location to do its job. They can still get that info with a warrant and somehow they limped along for all but 15 years of this country’s existence without being able to do that. As such I think the default position of the court should be to protect the citizens rather than curbing their rights further and granting the government greater power than it already has.
Is there relevant caselaw regarding hotel records, store/restaurant receipts, taxi logs, etc.?
My policy preference is for the government to need warrants to retrieve location data, but the majority opinion here seems tenuous in my non lawyer opinion. I also question Kyllo, despite also liking the outcome.
Yes, all of the above are available to the government without a warrant. Indeed, hotel records, in some states, are REQUIRED to be available to the government upon request.
I agree with your opinion, but I’m not sure we agree on the reason. I believe that all three of the things you cited (hotel, store, taxi) records could be argued by many to be more deserving of privacy than cell phone records. (e.g. I tell my wife that I am meeting with clients at a hotel meeting room each night, but the hotel records show that I am getting a room with two key cards and having booze sent up)
I’m not sure why you question Kyllo, and would certainly like to debate. The invasion in Kyllo is no different than prying eyes, IMHO>
I can use a camera to record electromagnetic radiation in the 9-14 um range or the 400-700 nm range. Seems silly to me to call one of those a search and the other not. Both can be blocked by the homeowner.
I’d still like that warrant required. I just don’t get the argument they used for it.
How, exactly, does the homeowner block 9-14 um thermal radiation? (Do try to find an answer that doesn’t inspire pointing and laughing when compared to the “pull down the blinds” answer for blocking 400-700 nm visible light.)
Now, see, this is just the sort of thing I was cautioning you about. The suggestion that failure to undertake a major home renovation project – or failure to disconnect from twenty-first-century society by giving up the routine use of cell phones – is required to assert privacy rights is the sort of point-and-laugh argument that the justices rejected in Kyllo and Carpenter.
