Coming to a Supreme Court near you

[Colonel Hogan]

For all of the attention paid to former FBI Director Jim Comey's highly anticipated testimony before the Senate intelligence committee last Thursday, the most important constitutional law development from last week took place across the street (and three days earlier). The Supreme Court agreed to hear argument in Carpenter v. United States later this year—though exactly when, we're not sure.

At the heart of the dispute in Carpenter is the "third-party doctrine," the idea that we surrender our constitutional expectation of privacy whenever we voluntarily share non-content information with third-parties, such as our phone companies, internet service providers, financial institutions, and so on. The third-party doctrine brings together two distinct strands of Fourth Amendment theory—that individuals' voluntary conduct can effect a form of "consent" to government searches, and that individuals cannot assert a privacy interest in property they no longer own or possess.

Without an expectation of privacy in such information, the government may collect it without having to satisfy the Fourth Amendment—even if, in some cases, it must nevertheless satisfy more modest statutory requirements that Congress has imposed. Thus, although Edward Snowden's 2013 disclosure of the bulk telephone metadata collection prompted substantial public debate over the constitutionality of such surveillance, it is difficult to see the argument that it was unconstitutional, thanks to the third-party doctrine (the Second Circuit instead invalidated it on narrower, statutory grounds).

Although the phone records program is perhaps the most prominent example, there are hundreds of other government surveillance programs or protocols, the legitimacy of which is predicated on the third-party doctrine.

But as the Snowden disclosures also underscored, technology has dramatically changed the privacy implications of the third-party doctrine. As Justice Sonia Sotomayor , explained in a 2012 concurrence

https://motherboard.vice.com/en_us/article/59zq5x/scotus-cell-location-privacy-op-ed

Carpenter v. United States is going to potentially have a huge impact on an entire line of prior Fourth Amendment caselaw such as United States v. Jones (2012), Smith v. Maryland (1979), Katz v. United States (1967) and legal wrangling regarding warrantless access to voice and internet metadata by federal intelligence agencies.

It will be interesting to see if we continue along a rather well-established precedent of "third party" information and records being excluded from your "reasonable expectation of privacy" under the Fourth Amendment or if we break new ground in expanding the Fourth Amendment right.

I personally think the law and reason argues against Carpenter's appeal with regard to cell site location information (CSLI), but nonetheless, I'm licking my legal chops in anticipation of this one.

 

[4est_4est_Gump]

~*~ reported ~*~



Law porn is not allowed on this site.

 

[BB4evah]

~~~~~~REPORTED~~~~~~~~~


for BORING us to death

 

[Colonel Hogan]

~*~ reported ~*~



Law porn is not allowed on this site.

~~~~~~REPORTED~~~~~~~~~


for BORING us to death

Just you guys wait 'til the decision comes down. You ain't seen anything yet!

Oh, and sorry to horn in on your territory there, bb. Should I leave 'boring' to the expert?

 

[EternalFantasies]

For starters, here's what I find absurd in the current state of things:

"The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" The government may only violate these rights upon issuance of a warrant. The Fourth Amendment protections include the public’s content of their communications; however, federal courts have long recognized that the Fourth Amendment does not protect the public from allowing the government to obtain the information necessary to get communications from point A to point B. For example, the government can obtain from a letter or package without a warrant the sender, receiver, originating and delivery addresses, package size, and weight; however, the government must obtain a warrant before opening the package or letter to obtain its contents.[3]"

I bet the reason given for that is "security". !!

Further on:

"In 1979, the Supreme Court decided Smith v. Maryland which determined the rights of the people with regards to phone communications.[4] The Court held in Smith that the government may not eavesdrop on a phone call, even a phone call placed from a public phone booth; however, the phone numbers the person dialed on his phone could be obtained without a warrant. Smith was a landmark decision by the Court and has guided the federal courts ever since on questions related to privacy and cell phones.[5]

In 1986, the United States Congress passed the Stored Communications Act (codified at 18 U.S.C. Chapter 121 §§ 2701–2712) which governs the privacy of stored Internet communications in the United States. Section 2703 (18 U.S.C. § 2703) provides the rules that the government must follow to compel a third-party service provider to disclose "customer or subscriber" content and non-content information."


So the government, all while saying we won't listen in on your convo, or view your info, we have the right know who you called and who called you!

That as it is, is an invasion of privacy and is not in spirit of the 4th amendment. That's already law!

And I can see, it has been always done by the supreme court, slowly but surely, dissolving the constitution particularly on what makes the US 'home of the [truly] free'.


"In Carpenter, the government is expected to rely upon the Stored Communications Act and Smith v. Maryland to support its position that obtaining the service provider’s location information should not require a warrant because the information only reveals a cell phone’s routing data rather than the contents of communications on the cell phone. The attorneys for Carpenter are expected to rely on the Fourth Amendment and Riley v. California to argue that cell phones have become intertwined into the lives of American citizens and the vast data contained within a person’s phone potentially holds the sum of the individual’s private life, so the routing data contains much more than the “information necessary to get communications from point A to point B"
https://en.wikipedia.org/wiki/Carpenter_v._United_States

Well, here's for hoping Carpenter wins.



On a side note, if the government cannot by law eavesdrop on a conversation, how can they have the Echelon system detect key words in telephone conversations and flag them for listening in?

 

[Rightguide]

Carpenter v. United States is going to potentially have a huge impact on an entire line of prior Fourth Amendment caselaw such as United States v. Jones (2012), Smith v. Maryland (1979), Katz v. United States (1967) and legal wrangling regarding warrantless access to voice and internet metadata by federal intelligence agencies.

It will be interesting to see if we continue along a rather well-established precedent of "third party" information and records being excluded from your "reasonable expectation of privacy" under the Fourth Amendment or if we break new ground in expanding the Fourth Amendment right.

I personally think the law and reason argues against Carpenter's appeal with regard to cell site location information (CSLI), but nonetheless, I'm licking my legal chops in anticipation of this one.

On another related subject. Most people making agreements with companies like Google or Verizon who verbally advertise to safeguard the private information of their customers are not agreeing to the blanket "702" warrantless collection of that private information by the nation's intelligence agencies.

The Fourth Amendment should check all warrantless collection of private information regardless of the availability of increasingly sophisticated collection technologies. The Constitution isn't about technology it's about limiting government power. The Fourth Amendment either constrains government power to court-ordered warrants issued upon probable cause or it doesn't.

 

[Colonel Hogan]

For starters, here's what I find absurd in the current state of things:

"The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" The government may only violate these rights upon issuance of a warrant. The Fourth Amendment protections include the public’s content of their communications; however, federal courts have long recognized that the Fourth Amendment does not protect the public from allowing the government to obtain the information necessary to get communications from point A to point B. For example, the government can obtain from a letter or package without a warrant the sender, receiver, originating and delivery addresses, package size, and weight; however, the government must obtain a warrant before opening the package or letter to obtain its contents.[3]"

I bet the reason given for that is "security". !!

Further on:

"In 1979, the Supreme Court decided Smith v. Maryland which determined the rights of the people with regards to phone communications.[4] The Court held in Smith that the government may not eavesdrop on a phone call, even a phone call placed from a public phone booth; however, the phone numbers the person dialed on his phone could be obtained without a warrant. Smith was a landmark decision by the Court and has guided the federal courts ever since on questions related to privacy and cell phones.[5]

In 1986, the United States Congress passed the Stored Communications Act (codified at 18 U.S.C. Chapter 121 §§ 2701–2712) which governs the privacy of stored Internet communications in the United States. Section 2703 (18 U.S.C. § 2703) provides the rules that the government must follow to compel a third-party service provider to disclose "customer or subscriber" content and non-content information."


So the government, all while saying we won't listen in on your convo, or view your info, we have the right know who you called and who called you!

That as it is, is an invasion of privacy and is not in spirit of the 4th amendment. That's already law!

And I can see, it has been always done by the supreme court, slowly but surely, dissolving the constitution particularly on what makes the US 'home of the [truly] free'.


"In Carpenter, the government is expected to rely upon the Stored Communications Act and Smith v. Maryland to support its position that obtaining the service provider’s location information should not require a warrant because the information only reveals a cell phone’s routing data rather than the contents of communications on the cell phone. The attorneys for Carpenter are expected to rely on the Fourth Amendment and Riley v. California to argue that cell phones have become intertwined into the lives of American citizens and the vast data contained within a person’s phone potentially holds the sum of the individual’s private life, so the routing data contains much more than the “information necessary to get communications from point A to point B"
https://en.wikipedia.org/wiki/Carpenter_v._United_States

Well, here's for hoping Carpenter wins.

On a side note, if the government cannot by law eavesdrop on a conversation, how can they have the Echelon system detect key words in telephone conversations and flag them for listening in?

From footnote 10 in your link:

The court also rejects the defendants’ reliance on Riley v. California, reasoning that in that case the Supreme Court determined that the search of a smartphone’s internal data without a warrant was improper because smartphones hold a vast amount of user data; in this case, by contrast, the data collected was about the location of the phone, rather than the phone’s contents. Moreover, Congress, which is better equipped to handle dramatic technological changes than the courts, has specifically prescribed a method for the government to obtain these types of records in the SCA. The court concludes that the government’s collection of the cell phone location data therefore did not constitute a Fourth Amendment search.

Here's how stupid anyone's "reliance on Riley" would be, although the above cited paragraph doesn't spell it out for you. Routing data most assuredly DOES NOT contain "much more information necessary to get communications from point A to point B." The cell site merely receives a signal from your phone and returns a signal confirming that you are "somewhere" within range and that the call can proceed. The only other info it collects from your phone is your service provider information in order to confirm that there is a valid agreement between the owner of the cell site AND that provider (the two are not necessarily the same) so that service may be provided to you. NONE of the other CONTENTS in your phone is collected by or stored in the cell site. Therefore your phone is never searched.

Location of your phone relative to a nearby cell tower is not stored ON or IN your phone. It is only stored, along with date, time, call destination and duration, at the cell site. Date, time and duration is information obtained from a clock. Destination is obtained from your "request" (i.e. dialed numbers) and compared with the company's own routing records as to how to physically connect TO that destination.

Date, time, duration and number called are all legitimate records of the service provider which impact the use of the company's physical lines and equipment. They need that information to place your call, and they need it to properly manage the placement, expansion and/or maintenance of those physical facilities. Strictly speaking, a search of those records is a search of the phone company, NOT YOU.

The legal principle at issue in Carpenter is not the nature of the information being collected. It is whether the sheer volume of it -- in the case of Carpenter, 127 various days of location information that thus allowed the government to construct a pattern of movement and form conclusions regarding the defendant's behavior based on that pattern -- constitutes an "unreasonable" search on the part of the government that would compel it to obtain a search warrant on the basis of "probable cause."

In other words, can the otherwise LAWFUL collection of information not normally covered by Fourth Amendment protection be abused in such a way as to make its collection UNLAWFUL unless authorized by warrant on the basis of probable cause.

That's the issue, and you would do well it keep it clear in your mind when the opinion is handed down.

Of course, in your case, I know that's asking quite a lot.

 

[Saint Peter]

Oh, and sorry to horn in on your territory there, bb. Should I leave 'boring' to the expert?

You have some big boots to fill!

 

[EternalFantasies]

From footnote 10 in your link:



Here's how stupid anyone's "reliance on Riley" would be, although the above cited paragraph doesn't spell it out for you. Routing data most assuredly DOES NOT contain "much more information necessary to get communications from point A to point B." The cell site merely receives a signal from your phone and returns a signal confirming that you are "somewhere" within range and that the call can proceed. The only other info it collects from your phone is your service provider information in order to confirm that there is a valid agreement between the owner of the cell site AND that provider (the two are not necessarily the same) so that service may be provided to you. NONE of the other CONTENTS in your phone is collected by or stored in the cell site. Therefore your phone is never searched.

Location of your phone relative to a nearby cell tower is not stored ON or IN your phone. It is only stored, along with date, time, call destination and duration, at the cell site. Date, time and duration is information obtained from a clock. Destination is obtained from your "request" (i.e. dialed numbers) and compared with the company's own routing records as to how to physically connect TO that destination.

Date, time, duration and number called are all legitimate records of the service provider which impact the use of the company's physical lines and equipment. They need that information to place your call, and they need it to properly manage the placement, expansion and/or maintenance of those physical facilities. Strictly speaking, a search of those records is a search of the phone company, NOT YOU.

The legal principle at issue in Carpenter is not the nature of the information being collected. It is whether the sheer volume of it -- in the case of Carpenter, 127 various days of location information that thus allowed the government to construct a pattern of movement and form conclusions regarding the defendant's behavior based on that pattern -- constitutes an "unreasonable" search on the part of the government that would compel it to obtain a search warrant on the basis of "probable cause."

In other words, can the otherwise LAWFUL collection of information not normally covered by Fourth Amendment protection be abused in such a way as to make its collection UNLAWFUL unless authorized by warrant on the basis of probable cause.

That's the issue, and you would do well it keep it clear in your mind when the opinion is handed down.

Of course, in your case, I know that's asking quite a lot.

1st. You will run my patience out too soon if you keep with your presumptuous and uncalled for offending.

2nd. What the issue is, is quite flexible in this thread, as a good understanding and scrutinizing of previous issues dealing with the fourth amendment are necessary to properly give views on the current 4th amendment related case you mention here.

3rd. No, info is also stored on today's phones like apples 'recent locations'... But its irrelevant I know you mean the tower is where the government gets it.

4th. My premise is looking at it from the grounds up. As in, if I walk around with my phone, make phone calls, why does anyone, including the cell phone provider, have the right disclosing that, i.e. my whereabouts, time of call, duration, numbers called/received, without probable cause? It seemed to me as it is as a violation of the 4th amendment.

In other words: I am acknowledging the separation between contents of phone and conversations, and mere location and duration and numbers called data. I am saying that I don't see how it was considered OK to get that data in the first place. Even if it is 'law' today.

5th. I do not know the details of Carpenter's case. But I'm submitting that, what you are calling "LAWFUL" above, perhaps should have never been lawful following my Spirit of 4th mentioned above, and as a consequence, what is to be decided in this case, is from 'bad' to 'worse' , or from 'bad' to same 'bad' in carpenter wins, to me. And yes, i do realize it is not what you are evaluating here. It's simply my premise.

The legal principle at issue in Carpenter is not the nature of the information being collected. It is whether the sheer volume of it -- in the case of Carpenter, 127 various days of location information that thus allowed the government to construct a pattern of movement and form conclusions regarding the defendant's behavior based on that pattern -- constitutes an "unreasonable" search on the part of the government that would compel it to obtain a search warrant on the basis of "probable cause."

I don't understand this i think coz I didn't read the case, and i won't

But what search here is being evaluated? Are you saying the 127 location are being used to draw conclusions on whereabouts, and as such, the gov. used those suspicions as ground to get a warrant for a complete search i.e. call content, phone content?

Or is this aimed to say you can't compile a person's whereabouts like that?

 

[Colonel Hogan]

On another related subject. Most people making agreements with companies like Google or Verizon who verbally advertise to safeguard the private information of their customers are not agreeing to the blanket "702" warrantless collection of that private information by the nation's intelligence agencies.

The Fourth Amendment should check all warrantless collection of private information regardless of the availability of increasingly sophisticated collection technologies. The Constitution isn't about technology it's about limiting government power. The Fourth Amendment either constrains government power to court-ordered warrants issued upon probable cause or it doesn't.

This is precisely why I started this thread and keep harping on this subject. People like you have a distorted view of the essential nature of "private information." You continuously misunderstand and erroneously define it.

The date, time, dialed number and duration of a phone call, is NOT YOUR "private information." At best, it is the private information of the phone company. What they choose to do with it and/or what the law compels them to do with it vis-a-vis the government is between THEM and the GOVERNMENT. Thus, warrantless collection of information under Sec. 702 of the Patriot Act does not impact YOUR private information.

I can assure you that the scope and details of YOUR private information which service providers protect is spelled out in legal contracts between you and those companies. You should read them in their entirety.

Furthermore, "private information" does not inherently protect the physical route you take from one public place to another.

Private information is not your airline or the flight number of the service which you traveled.

Private information is not the products or services you purchased from a merchant or retailer UNLESS the confidentiality of that interaction is guaranteed by separate contract.

Private information is not typically the address where you live.

Private information is not the value of much of the property you own, i.e. home, automobiles, boats, aircraft and commercial property.

Private information is not who you know and who knows you -- at least not if those other people wish to share it.

In fact, in the vast majority of cases, private information is ONLY private based on the care YOU EXERCISE in keeping it private. The expectation that other people (most particularly the government) should "mind their own business" when it comes to your affairs is hopelessly naive. We all have a right to be curious, and particularly if satisfying that curiosity LEGALLY returns a profit to us in any number of ways -- "profit" being defined by he who is curious.

In other words, stop whining about the privacy "cost" of staying "on grid" and continually educate yourself as to what that cost entails and what measures YOU should take if you are not willing to pay it.

 

[Rightguide]

This is precisely why I started this thread and keep harping on this subject. People like you have a distorted view of the essential nature of "private information." You continuously misunderstand and erroneously define it.

The date, time, dialed number and duration of a phone call, is NOT YOUR "private information." At best, it is the private information of the phone company. What they choose to do with it and/or what the law compels them to do with it vis-a-vis the government is between THEM and the GOVERNMENT. Thus, warrantless collection of information under Sec. 702 of the Patriot Act does not impact YOUR private information.

I can assure you that the scope and details of YOUR private information which service providers protect is spelled out in legal contracts between you and those companies. You should read them in their entirety.

Furthermore, "private information" does not inherently protect the physical route you take from one public place to another.

Private information is not your airline or the flight number of the service which you traveled.

Private information is not the products or services you purchased from a merchant or retailer UNLESS the confidentiality of that interaction is guaranteed by separate contract.

Private information is not typically the address where you live.

Private information is not the value of much of the property you own, i.e. home, automobiles, boats, aircraft and commercial property.

Private information is not who you know and who knows you -- at least not if those other people wish to share it.

In fact, in the vast majority of cases, private information is ONLY private based on the care YOU EXERCISE in keeping it private. The expectation that other people (most particularly the government) should "mind their own business" when it comes to your affairs is hopelessly naive. We all have a right to be curious, and particularly if satisfying that curiosity LEGALLY returns a profit to us in any number of ways -- "profit" being defined by he who is curious.

In other words, stop whining about the privacy "cost" of staying "on grid" and continually educate yourself as to what that cost entails and what measures YOU should take if you are not willing to pay it.

Yes, I understand the government considers nothing private, email, electronic signature contracts, or encrypted information. Only snail mail and when they want to see that they just steam it open in CIA fashion. That is my point. "Most people" don't understand this totalitarian crap. They actually believe that some things are private. They actually believe their Constitution is still relevant.

 

[Colonel Hogan]

4th. My premise is looking at it from the grounds up. As in, if I walk around with my phone, make phone calls, why does anyone, including the cell phone provider, have the right disclosing that, i.e. my whereabouts, time of call, duration, numbers called/received, without probable cause? It seemed to me as it is as a violation of the 4th amendment.

In other words: I am acknowledging the separation between contents of phone and conversations, and mere location and duration and numbers called data. I am saying that I don't see how it was considered OK to get that data in the first place. Even if it is 'law' today.

5th. I do not know the details of Carpenter's case. But I'm submitting that, what you are calling "LAWFUL" above, perhaps should have never been lawful following my Spirit of 4th mentioned above, and as a consequence, what is to be decided in this case, is from 'bad' to 'worse' , or from 'bad' to same 'bad' in carpenter wins, to me. And yes, i do realize it is not what you are evaluating here. It's simply my premise.

Here is the problem with your premise. It's in error with respect not merely to law "today." That's "always" been the law -- even BEFORE the invention of the telephone. Why do I say that? Because the Fourth Amendment only protects you against "unreasonable" searches and seizures. And it has never been inherently unreasonable to simply OBSERVE where you are out in public or what you are doing there. If I observe you standing on a street corner making a phone call, have I invaded YOUR privacy if I call someone -- say, your wife-- and I tell them that I saw you down here on Main Street making a phone call? Do you have a Fourth Amendment right to prohibit me from sharing that information which I have freely observed?

Taking it one step further. If you were cavalier enough to TELL ME who you were talking to, would you have a Fourth Amendment right to prohibit me from sharing THAT information with anyone else -- including your wife, since I already have her on the line ?

That essentially is what happens every time you make a phone call. The phone number you dial, the date and time of day you dial it and the duration of that call is a separate communication between you and the phone company that has nothing whatsoever to do with the PRIVATE INFORMATION communicated between you and the party you dialed. I cannot make that point strongly enough. They are two separate communications, and the LEGAL PROTECTIONS surrounding them are vastly different.

Here is the legal distinction you really need to understand: In order to convict you of a crime, that metadata information is available as evidence to prosecutors merely upon issuance of a subpoena. But if the content of that actual phone call was necessary to convict you, the government would need a warrant to tap your phone.

Now interestingly enough, that same metadata evidence available to prosecutors by subpoena to convict YOU would require a search warrant if it was being used to criminally convict the phone company!! Why?? Because the Fourth Amendment protection against "unreasonable" search ONLY protects a person's "houses, papers, and effects" which they own and control and production of that material for the purpose of prosecuting YOU requires a warrant. If the government wants access to YOUR "papers and effects" (or for that matter your mere first hand knowledge) to prosecute SOMEONE ELSE, it need merely to serve you with a subpoena.

It's the same with the phone company. Another way of thinking about this is, it's analogous to the Fifth Amendment. You cannot be compelled to give testimony against yourself in a criminal trial. You DO NOT have privilege in the vast majority of instances to refrain from ratting out someone else. You are almost always COMPELLED to testify against them.

So, to recap: Meadata owned by the phone company used as evidence to prosecute YOU is discoverable merely through issuance of a subpoena. Metadata owned by the phone company used as evidence to prosecute the phone company requires issuance of a search warrant as required by the Fourth Amendment.

Your "personal papers and effects" owned by you and used as evidence to prosecute someone else is discoverable and MUST be produced merely through issuance of a subponea.Your personal papers effects used as evidence to prosecute you requires a search warrant as required by the Fourth Amendment.

I hope this (finally) helps.

But what search here is being evaluated? Are you saying the 127 location are being used to draw conclusions on whereabouts, and as such, the gov. used those suspicions as ground to get a warrant for a complete search i.e. call content, phone content?

Or is this aimed to say you can't compile a person's whereabouts like that?

The latter. That is what Carpenter is arguing. And if the Court accepts and honors that argument, it will represent BRAND NEW Fourth Amendment law.

 

[Libsam]

Ted Kaczynski was right all along.

 

[Colonel Hogan]

Yes, I understand the government considers nothing private, email, electronic signature contracts, or encrypted information. Only snail mail and when they want to see that they just steam it open in CIA fashion. That is my point. "Most people" don't understand this totalitarian crap. They actually believe that some things are private. They actually believe their Constitution is still relevant.

Like "most people" you don't understand that the "persons, houses, papers, and effects" which the Fourth Amendment protects against "unreasonable searches and seizures" is an APPROPRIATELY small body of material. It was never meant to comprehensively shroud every conceivable thing you utter, touch, see, momentarily possess or value.

You don't understand it because you don't even make a feeble attempt. I am sorry for both your intellectual laziness and the ignorance it obviously spawns.

 

[EternalFantasies]

Here is the problem with your premise. It's not just law "today." It's "always" been the law -- even BEFORE the invention of the telephone. Why do I say that? Because the Fourth Amendment only protects you against "unreasonable" searches and seizures. And it has never been inherently unreasonable to simply OBSERVE where you are out in public or what you are doing there. If I observe you standing on a street corner making a phone call, have I invaded YOUR privacy if I call someone -- say, your wife-- and I tell them that I saw you down here on Main Street making a phone call? Do you have a Fourth Amendment right to prohibit me from sharing that information which I have freely observed?

Taking it one step further. If you were cavalier enough to TELL ME who you were talking to, would you have a Fourth Amendment right to prohibit me from sharing THAT information with anyone else -- including your wife, since I already have her on the line .

That essentially is what happens every time you make a phone call. The phone number you dial, the date and time of day you dial it and the duration of that call is a separate communication between you and the phone company that has nothing whatsoever to do with the PRIVATE INFORMATION communicated between you and the party you dialed. I cannot make that point strongly enough. They are two separate communications, and the LEGAL PROTECTIONS surrounding them are vastly different.

Here is the legal distinction you really need to understand: In order to convict you of a crime, that metadata information is available as evidence to prosecutors merely upon issuance of a subpoena. But if the content of that actual phone call was necessary to convict you, the government would need a warrant to tap your phone.

Now interestingly enough, that same metadata evidence available to prosecutors by subpoena to convict YOU would require a search warrant if it was being used to criminally convict the phone company!! Why?? Because the Fourth Amendment protection against "unreasonable" search ONLY protects a person's "houses, papers, and effects" which they own and control and production of that material for the purpose of prosecuting YOU requires a warrant. If the government wants access to YOUR "papers and effects" (or for that matter your mere first hand knowledge) to prosecute SOMEONE ELSE, it need merely to serve you with a subpoena.

It's the same with the phone company. Another way of thinking about this is, it's analogous to the Fifth Amendment. You cannot be compelled to give testimony against yourself in a criminal trial. You DO NOT have privilege in the vast majority of instances to refrain from ratting out someone else. You are almost always COMPELLED to testify against them.

So, to recap: Meadata owned by the phone company used as evidence to prosecute YOU is discoverable merely through issuance of a subpoena. Metadata owned by the phone company used as evidence to prosecute the phone company requires issuance of a search warrant as required by the Fourth Amendment.

Your "personal papers and effects" owned by you and used as evidence to prosecute someone else is discoverable and MUST be produced merely through issuance of a subponea.Your personal papers effects used as evidence to prosecute you requires a search warrant as required by the Fourth Amendment.

I hope this (finally) helps.

Yes. And thank you for the clarification.

Yet, the issue here is I suppose, is when we take what can be a product of a coincidence, and make it systematic and recorded.

Technology here is betraying us of sorts* with the laws drawn that way. Where if there is no need to know where I am, no one would. But if one would like to, even in the future, they can go back in the records and find out...

While I see your point, I'm sure you also see mine here...

The latter. That is what Carpenter is arguing. And if the Court accepts and honors that argument, it will represent BRAND NEW Fourth Amendment law.

Well I suppose then it can help resolve my issue in the above*, if I understand it correctly.

 

[Rightguide]

Like "most people" you don't understand that the "persons, houses, papers, and effects" which the Fourth Amendment protects against "unreasonable searches and seizures" is an APPROPRIATELY small body of material. It was never meant to comprehensively shroud every conceivable thing you utter, touch, see, momentarily possess or value.

You don't understand it because you don't even make a feeble attempt. I am sorry for both your intellectual laziness and the ignorance it obviously spawns.

And I'm sorry you don't understand that a lot of papers and effects are today in electronic form which the Constitution couldn't have foreseen. Unlike you, I'm quite sure the founders would have seen a warrantless government seizure of this data as an unconstitutional violation of the Fourth Amendment, the content of a letter being the same if written on Paper of electronically transcribed and secured on somebody's hard drive. Unlike you, I'm not a full-time apologist for government overreach and unlawful spying on our civil society and its candidates for public office.

 

[EternalFantasies]

Ted Kaczynski was right all along.

Heyyy.. Just saw that.

I see.. wow.

Poor guy...

 

[Libsam]

https://i.imgur.com/vp2K3QY.gif

 

[Libsam]

Heyyy.. Just saw that.

I see.. wow.

Poor guy...

Yeah, he started terror bombing after becoming an assistant professor at Berkeley in 1965 at age 25. I have no doubt that is where he acquired the mind virus.

 

[Colonel Hogan]

And I'm sorry you don't understand that a lot of papers and effects are today in electronic form which the Constitution couldn't have foreseen. Unlike you, I'm quite sure the founders would have seen a warrantless government seizure of this data as an unconstitutional violation of the Fourth Amendment, the content of a letter being the same if written on Paper of electronically transcribed and secured on somebody's hard drive. Unlike you, I'm not a full-time apologist for government overreach and unlawful spying on our civil society and its candidates for public office.

The legal trend is actually running against your interpretation of government tyranny.

The first Supreme Court case examining electronic phone surveillance was that of Olmstead v. United States (1928). Olmstead was a bootlegger charged with violating the Volstead Act and had been convicted, in part, upon wire tapped phone conversations without benefit of a court ordered warrant. In AFFIRMING Olmstead's conviction, the court issued the following three (among other) legal holdings:

2. Evidence of a conspiracy to violate the Prohibition Act was obtained by government officers by secretly tapping the lines of a telephone company connected with the chief office and some of the residences of the conspirators, and thus clandestinely overhearing and recording their telephonic conversations concerning the conspiracy and in aid of its execution. The tapping connections were made in the basement of a large office building and on public streets, and no trespass was committed upon any property of the defendants. Held, that the obtaining of the evidence and its use at the trial did not violate the Fourth Amendment. Pp. 457- 277 U. S. 466.

3. The principle of liberal construction applied to the Amendment to effect its purpose in the interest of liberty will not justify enlarging it beyond the possible practical meaning of "persons, houses, papers, and effects," or so applying "searches and seizures" as to forbid hearing or sight. P. 277 U. S. 465.

4. The policy of protecting the secrecy of telephone messages by making them, when intercepted, inadmissible as evidence in federal criminal trials may be adopted by Congress through legislation, but it is not for the courts to adopt it by attributing an enlarged and unusual meaning to the Fourth Amendment. P. 277 U. S. 465.

https://supreme.justia.com/cases/federal/us/277/438/

This interpretation of a LACK of Fourth Amendment reach correctable ONLY by appropriate Congressional legislation endured until the Court's decision in Katz v. United States (1967), wherein the Court expanded Fourth Amendment protection to electronic communications and removed the accompanying presumption that a "physical trespass" of "persons, papers and effects" was necessary to constitute such a Fourth Amendment violation.

You and I surely share sorrow that it took the Court 39 years to come to that conclusion. Nonetheless, electronic communications do enjoy Fourth Amendment protection today.

But that neither ends the matter, nor does it even begin a reasoned analysis. Communications aren't protected or unprotected based on whether they are written or electronic. They are protected or unprotected based on whether the manner in which they are searched for and seized by the government is or isn't "unreasonable." There is an entire body of law on that subject of which Olmstead and Katz are only two relevant cases. You should read some of those others.

Because that entire body of law reigns supreme over my personal opinion. And far more obviously, your ignorant one.

 

[Colonel Hogan]

Yes. And thank you for the clarification.

Yet, the issue here is I suppose, is when we take what can be a product of a coincidence, and make it systematic and recorded.

Technology here is betraying us of sorts* with the laws drawn that way. Where if there is no need to know where I am, no one would. But if one would like to, even in the future, they can go back in the records and find out...

While I see your point, I'm sure you also see mine here...



Well I suppose then it can help resolve my issue in the above*, if I understand it correctly.

^^^^This IS the legal challenge. And the current legal STANDARD by which that challenge is adjudicated comes to us through the aforementioned case of Katz v. United States (1967). Katz was the first case wherein the Court held that “the Fourth Amendment protects people, not places.”

But if we left that declaration merely there we would open ourselves to a rash of subjective interpretation. The Court went on the say that a search and seizure protected by the Fourth Amendment MUST contain TWO elements. First, the individual must have exhibited a subjective expectation of privacy and, second, the expectation must be one that society is prepared to recognize as reasonable.

That distinction only helps us a little. You and I may not agree on what is reasonable. One (or both) of us may not agree with "society." So the courts will necessarily make that decision for us.

And while you are arguably correct that "technology [may] betray" our reasonable expectation of privacy, it is no less true that our refusal to examine technological capabilities for appropriate distinctions, qualifications and exceptions to our expectations is equally UNreasonable.

And, for my money, that is where most people unfortunately stand.

I have no sympathy for someone who engages in nude sunbathing in their backyard with an expectation NOT to be embarrassingly photographed and doesn't have the good sense to build an eight to 10-foot privacy fence to affect their privacy objective.

I have every sympathy for someone who takes that precaution and is nonetheless photographed with a telephoto lens on an aerial drone hovering silently hundreds of feet above them.

Somewhere between these two extremes is where issues like electronic metadata resides. And where the courts have clarified the application of those issues, as they clearly have with telephony metadata, I don't have much patience with people who reflexively and obstinately refuse to acknowledge that legal clarification.

The upcoming Carpenter case will afford us that opportunity once again. But depending on how it comes out, I'm not supremely confident of a universal acceptance of the legal principles it imposes upon us.

Why should this time be any different from the past?

 

[Rightguide]

The legal trend is actually running against your interpretation of government tyranny.

The first Supreme Court case examining electronic phone surveillance was that of Olmstead v. United States (1928). Olmstead was a bootlegger charged with violating the Volstead Act and had been convicted, in part, upon wire tapped phone conversations without benefit of a court ordered warrant. In AFFIRMING Olmstead's conviction, the court issued the following three (among other) legal holdings:



This interpretation of a LACK of Fourth Amendment reach correctable ONLY by appropriate Congressional legislation endured until the Court's decision in Katz v. United States (1967), wherein the Court expanded Fourth Amendment protection to electronic communications and removed the accompanying presumption that a "physical trespass" of "persons, papers and effects" was necessary to constitute such a Fourth Amendment violation.

You and I surely share sorrow that it took the Court 39 years to come to that conclusion. Nonetheless, electronic communications do enjoy Fourth Amendment protection today.

But that neither ends the matter, nor does it even begin a reasoned analysis. Communications aren't protected or unprotected based on whether they are written or electronic. They are protected or unprotected based on whether the manner in which they are searched for and seized by the government is or isn't "unreasonable." There is an entire body of law on that subject of which Olmstead and Katz are only two relevant cases. You should read some of those others.

Because that entire body of law reigns supreme over my personal opinion. And far more obviously, your ignorant one.

And the warrantless collection by national intelligence surveillance of virtually every American who then can be routinely unmasked for political gain is reasonable as well?

 

[irksomesauce]

Ted Kaczynski was right all along.

Except for that part about getting statist Corporal Butthurt's address wrong.

 

[Colonel Hogan]

And the warrantless collection by national intelligence surveillance of virtually every American who then can be routinely unmasked for political gain is reasonable as well?

When did that happen? Exaggerate much?

 

[Rightguide]

When did that happen? Exaggerate much?

Dennis Montgomery alleges 20 million so yes that was a slight prevarication.

https://townhall.com/tipsheet/mattv...y-alleges-cover-up-of-spy-activities-n2342702