The second big 4th Amendment case on the current SCOTUS calendar

[EternalFantasies]

Carpenter v. United States just came down this morning.

The court held that cell phone location records MUST be obtained via subpoena in a 5-4 vote.

Carpenter was tracked via his cell phone location for 127 days by the Feds, who claimed they did not need a warrant or to show probable cause to a judge.

Carpenter motioned to suppress the evidence based on lack of warrant of probable cause. Court sided with him.

Why thank you smartie pants. I guess I didn't need to bump this with post#16 this morning.

 

[RobDownSouth]

Why thank you smartie pants. I guess I didn't need to bump this with post#16 this morning.

Sorry about that. I typically skip over your drivel out of habit.

 

[EternalFantasies]

Sorry about that. I typically skip over your drivel out of habit.

Had your views & perception been of any value, this would have almost made me skip a ball scratch.


Which is quite a lot of sacrifice, relatively.

 

[Colonel Hogan]

Washington (CNN)The Supreme Court on Friday said the government generally needs a warrant if it wants to track an individual's location through cell phone records over an extended period of time.

The ruling is a major victory for advocates of increased privacy rights who argued more protections were needed when it comes to the government obtaining information from a third party such as a cell phone company.

https://www.cnn.com/2018/06/22/politics/supreme-court-ruling-cell-phone/index.html

Ahem.. Colonel. Check my signature

I don't often disagree with a majority opinion of the Court, and even when I do, I can at least see the legal rationale behind their rulings. That rationale usually holds up, at least, from the subjective philosophy the Court wishes to embrace.

Not this time. This decision is absolutely horrible. It not only overturns long standing caselaw precedent in the area of the legal standard requiring production of third-party owned business records but, by the Court's own words, does so "narrowly" -- specifically ONLY in the case of cell site location information (CSLI) and not even then with any consistency. Only that a probable cause warrant is "generally" needed to access CSLI, although "case-specific exceptions— e.g. , exigent circumstances—may support a warrantless search."

Well, that certainly isn't the least bit helpful, is it? Think the court specified in any detail what those exigent circumstances are? HAH!! Think again.

Justice Roberts, writing for the majority, fucked the law up:

Mapping a cell phone’s location over the course of 127 days provides an all-encompassing record of the holder’s whereabouts. As with GPS information, the timestamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his “familial, political, professional, religious, and sexual associations.”

And like GPS monitoring, cell phone tracking is remarkably easy,cheap, and efficient compared to traditional investigative tools. With just the click of a button, the Government can access each carrier’s deep repository of historical location information at practically no expense.

In fact, historical cell-site records present even greater privacy concerns than the GPS monitoring of a vehicle we considered in Jones. Unlike the bugged container in Knotts or the car in Jones, a cell phone—almost a “feature of human anatomy,” — tracks nearly exactly the movements of its owner.While individuals regularly leave their vehicles, they compulsively carry cell phones with them all the time. A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales."

Justice Kennedy's dissent, in skewering the above analysis, gets it right. :

According to today’s majority opinion, the Government can acquire a record of every credit card purchase and phone call a person makes over months or years without upsetting a legitimate expectation of privacy. But, in the Court’s view, the Government crosses a constitutional line when it obtains a court’s approval to issue a subpoena for more than six days of cell-site records in order to determine whether a person was within several hundred city blocks of a crime scene. That distinction is illogical and will frustrate principled application of the Fourth Amendment in many routine yet vital law enforcement operations.

*******************

By contrast, financial records and telephone records do“‘revea[l] . . . personal affairs, opinions, habits and associations.’” Miller, 425 U. S., at 451 (Brennan, J., dissenting); What persons purchase and to whom they talk might disclose how much money they make; the political and religious organizations to which they donate; whether they have visited a psychiatrist, plastic surgeon, abortion clinic,or AIDS treatment center; whether they go to gay bars or straight ones; and who are their closest friends and family members. The troves of intimate information the Government can and does obtain using financial records and telephone records dwarfs what can be gathered from cell-site records.

Still, the Court maintains, cell-site records are “unique” because they are “comprehensive” in their reach; allow for retrospective collection; are “easy, cheap, and efficient compared to traditional investigative tools”; and are not exposed to cell phone service providers in a meaningfully voluntary manner. But many other kinds of business records can be so described. Financial records are of vast scope. Banks and credit card companies keep a comprehensive account of almost every transaction an individual makes on a daily basis. “With just the click of a button, the Government can access each[company’s] deep repository of historical [financial] information at practically no expense.” And the decision whether to transact with banks and credit card companies is no more or less voluntary than the decision whether to use a cell phone. Today, just as when Miller was decided, “‘it is impossible to participate in the economic life of contemporary society without maintaining a bank account.’” But this Court, nevertheless, has held that individuals do not have a reasonable expectation of privacy in financial records.

Chief Justice Roberts shot the law in the foot by joining the four liberals on the Court. Almost never a good idea in general, but a particularly BAD one when you start trying to parse generally held legal principles of property (who actually OWNS the records as a determinant of what constitutes a Fourth Amendment search) and a reasonable expectation of privacy (NOT generally encompassing where you happen to be fully recognizable in PUBLIC space).

The woeful injustice of the Carpenter decision is that it attempts to leave BOTH of those entrenched principles intact -- indeed, actually claims it does -- while distinguishing CSLI data as the ONLY (so far) material worthy of special exception.

Generally.

Maybe.

But not all the time.

Yeah, that's some great law there.

 

[EternalFantasies]

The decision is compatible with posts 7, then 13. There's a Spirit in them that's important to maintain, otherwise, as previously said, it would no longer be the USA.

Can't let technology come bite us in the butt. I think it's a good decision. It's interesting they put the word "generally" in there though.

 

[Colonel Hogan]

The decision is compatible with posts 7, then 13. There's a Spirit in them that's important to maintain, otherwise, as previously said, it would no longer be the USA.

Can't let technology come bite us in the butt. I think it's a good decision. It's interesting they put the word "generally" in there though.

And Kennedy's dissent is in complete alignment with my post: #11 So I guess I'll go with that.

And if you don't think that word "generally" is going to bite us all in the ass through the confusion it is going to generate.......you don't know jack.

And I KNOW you know better.

 

[EternalFantasies]

And Kennedy's dissent is in complete alignment with my post: #11 So I guess I'll go with that.

And if you don't think that word "generally" is going to bite us all in the ass through the confusion it is going to generate.......you don't know jack.

And I KNOW you know better.

Hey, it's why I said it's interesting. I'd certainly would have preferred not seeing that word there.

And I replied to post 11. You, however, never replied back.

 

[jaF0]

I can agree that tracking a cell phone over 4 months is far more of an invasion of privacy than checking to see if it was near a bank when it was robbed.

 

[Colonel Hogan]

Hey, it's why I said it's interesting. I'd certainly would have preferred not seeing that word there.

And I replied to post 11. You, however, never replied back.

You did, indeed, and the primary reason I didn't reply back was because I thought we both did a competent job of reflecting two different philosophies. For that matter, we still have.

My complaint with the ruling is that it not only neither applies your philosophy or mine consistently with respect to CSLI, but far more importantly (as Kennedy notes) with respect to other items that SHOULD, rationally speaking, be directly analogous to the same reasonable right of privacy expectation attendant to CLSI if you're looking at those other items equitably and from the same perspective.

When you say, "The laws are there to serve me, I am not here to serve the law" I think you are forgetting that the laws are there to serve everybody, and the full range of "service" that various folks would describe as being "well served" is quite different. The job of the law is to regulate, in an even handed, CONSISTENT manner, the SAME OR NEARLY THE SAME objects, freedoms, finances, circumstances, property, etc. regardless of how any one citizen feels they were "well served" by the law.

Kennedy's question is quite simple. Answer it for me if you would. If the mining of CSLI creates an invasion of privacy by virtue of the intimate inferences it allows the government to make regarding your movements in public (where you go, when you go and whom you see), why doesn't the mining of bank and financial records create the same invasion of privacy by virtue of the intimate inferences it allows the government to make regarding your purchasing habits (what you buy, when you bought it, how much you paid and from whom you purchased)? In most cases, those financial records paint exactly the same picture (where you went, when you went, and whom you saw) as does CSLI data. With the additional information that you bought something at a specific quantity and for a specific price.

What is the philosophy that compels treating the two different types of data differently UNDER THE LAW if they can both be equally applied to making the same invasive inferences?

It's exactly the same thing. And we make extremely BAD law when we make DIFFERENT laws regulating what are essentially the same things.

That's my beef.

 

[EternalFantasies]

Kennedy's question is quite simple. Answer it for me if you would. If the mining of CSLI creates an invasion of privacy by virtue of the intimate inferences it allows the government to make regarding your movements in public (where you go, when you go and whom you see), why doesn't the mining of bank and financial records create the same invasion of privacy by virtue of the intimate inferences it allows the government to make regarding your purchasing habits (what you buy, when you bought it, how much you paid and from whom you purchased)? In most cases, those financial records paint exactly the same picture (where you went, when you went, and whom you saw) as does CSLI data. With the additional information that you bought something at a specific quantity and for a specific price.

What is the philosophy that compels treating the two different types of data differently UNDER THE LAW if they can both be equally applied to making the same invasive inferences?

It's exactly the same thing. And we make extremely BAD law when we make DIFFERENT laws regulating what are essentially the same things.

That's my beef.

I think they answered you on that. It's in the nature of those types of data.

Financial records obtained by the government are for tax purposes, i think, and the related transactions given to the government have to do with transparent and honest dealing . (ex, if you pay cash, no one know where you ate, etc. but for tax purposes, you need a proof, the receipt).

So the government needs to know those transactions to ensure I'm respecting tax laws.

The government cannot feel free to know my detailed whereabouts from a newly introduced technological device, the cell phone, to ensure I did not break laws. That's an invasion of privacy.

At least, I hope I'm understanding it right.

 

[Colonel Hogan]

I think they answered you on that. It's in the nature of those types of data.

Financial records obtained by the government are for tax purposes, i think, and the related transactions given to the government have to do with transparent and honest dealing . (ex, if you pay cash, no one know where you ate, etc. but for tax purposes, you need a proof, the receipt).

So the government needs to know those transactions to ensure I'm respecting tax laws.

The government cannot feel free to know my detailed whereabouts from a newly introduced technological device, the cell phone, to ensure I did not break laws. That's an invasion of privacy.

At least, I hope I'm understanding it right.

Actually, you're not even quite half right. The Court did make a distinction with regard to the two types of data. But Kennedy's point was that they never did that before nor should they have done it now. The question before was always does the individual have a reasonable expectation of privacy with respect to the information? AND, secondly, that the reasonableness OF the expectation was, in no small matter, based on who actually OWNED the information. If the information was not compiled by you and/or privately held and stored by you, but was MERELY ABOUT you, it did not BELONG to you, and you did not have a reasonable expectation of privacy in regard to it.

It was never about the nature of the data itself. It was a completely different legal standard that now, in one specific area, has been abandoned in favor of an incongruous novelty.

The government's right to subpoena financial records has nothing special to do with violation of tax law any more than it has to do with evidence of potential violation of any other law. For that matter, very little of the vast majority of our financial transactions impact taxable or non-taxable exemptions. To the specific point of the strawman nature of your argument, the financial records subpoenaed in the landmark case of Miller referred to in Carpenter was for the purpose of garnering evidence that resulted in a criminal investigation and trial for a robbery.

It had nothing to do with the government having an inherent right to know the defendant was complying with tax law.

Which also has nothing to do with the government's continuing right of access (through subpoena only) to ALL PHONE RECORDS OTHER THAN CSLI. There is a whole shitload of potential criminal violations which generic phone records might be used as evidence for that don't involve tax law.

Besides which there are numerous other ways an individual can civilly or criminally victimize the federal government. None of those transgressions -- including tax violations -- are Constitutionally weighted in favor of the government to the detriment of a criminal defendant. So there is no legitimate reason to single out financial records for government discovery along the lines you've hypothesized.

The case is simply about two different legal standards governing third party ownership of your "personal" information and the bankrupt legal rationale in Carpenter that has been applied to one segment of that information.

But thanks for giving the question a shot.

 

[TeflonGuy]

And whichever side you take in Microsoft v. United States says a LOT about how you view the law.



We all know that "no warrants shall issue but upon probable cause," but this was a warrant issued clearly upon that standard. And if the 4th Amendment exists for the purpose of securing citizens from "unreasonable" searches and seizures, it just as surely secures the "reasonable" practice of law enforcement on behalf of those same citizens when reasonable searches are authorized BY court issued warrants.

Just as clearly, the material lawfully sought was wholly within the legal possession of Microsoft and under their direct control for possible production. It was not "possessed" by an Irish national. The possessor was Microsoft. Far more importantly, Microsoft was NOT the target of the search. They just held the electronic record. The criminal defendant was the object of the 4th Amendment search. Microsoft is more accurately portrayed as a material witness, and, as the government successfully argued in the two jurisdictions below the 2nd Circuit, in the position of having been served a subpoena which should not run afoul of the statutory deficiency of Section 2703 of the Stored Communications Act.

So why, you might ask, does that deficiency exists? Could Congress not have spelled out their intent better, or did they not, perhaps, do exactly that by NOT attempting to apply Section 2703 to American citizens BEYOND the physical boundaries of the U. S.?

Well, probably not. Beyond the obvious doubt that Congress had any reason to undermine the fulfillment of court-ordered search warrants, the 1986 enactment date of the Stored Communications Act and the relative newness of stored electronic communications at that time is more suspect as an explanation of the statutory deficiency. Computers stored records in 1986, but the computers themselves were traditionally stored in domestic homes and offices. Cloud storage was not at all common, if even contemplated. "Sneaker net" -- physically transporting magnetic storage media from site to site -- was still in vogue.

This case promises to be extremely interesting. It could easily be a 5 - 4 split along traditional liberal/conservative grounds, or Kennedy, Roberts and maybe even Alito could join the liberals for a 6-3, 7-2 decision against the government.

What say you?

Does the law "mean what it says (or DOESN'T say) regardless of what the lawmakers meant, or likely WOULD have meant had they sharper future vision? You know like our 2nd Amendment authors back in the day if they could have foreseen mass casualty shootings at elementary schools? Do appellate courts have the right to "legislate" from the bench to correct that lack of vision in light of technology that was arguably non-existent at the time of legislative drafting?

Funny how we keep coming back to the same arguments regardless of which amendment we are arguing about.

Keep an eye on this one, because that is exactly what's going on.

There's a thread about Microsoft vs United States under a banned poster - Captainnumnuts - in the politics forum that might be worth a look see. I think there is a SCOTUS link there as well in the OP.

 

[EternalFantasies]

Actually, you're not even quite half right. The Court did make a distinction with regard to the two types of data. But Kennedy's point was that they never did that before nor should they have done it now. The question before was always does the individual have a reasonable expectation of privacy with respect to the information? AND, secondly, that the reasonableness OF the expectation was, in no small matter, based on who actually OWNED the information. If the information was not compiled by you and/or privately held and stored by you, but was MERELY ABOUT you, it did not BELONG to you, and you did not have a reasonable expectation of privacy in regard to it.

It was never about the nature of the data itself. It was a completely different legal standard that now, in one specific area, has been abandoned in favor of an incongruous novelty.

The government's right to subpoena financial records has nothing special to do with violation of tax law any more than it has to do with evidence of potential violation of any other law. For that matter, very little of the vast majority of our financial transactions impact taxable or non-taxable exemptions. To the specific point of the strawman nature of your argument, the financial records subpoenaed in the landmark case of Miller referred to in Carpenter was for the purpose of garnering evidence that resulted in a criminal investigation and trial for a robbery.

It had nothing to do with the government having an inherent right to know the defendant was complying with tax law.

Which also has nothing to do with the government's continuing right of access (through subpoena only) to ALL PHONE RECORDS OTHER THAN CSLI. There is a whole shitload of potential criminal violations which generic phone records might be used as evidence for that don't involve tax law.

Besides which there are numerous other ways an individual can civilly or criminally victimize the federal government. None of those transgressions -- including tax violations -- are Constitutionally weighted in favor of the government to the detriment of a criminal defendant. So there is no legitimate reason to single out financial records for government discovery along the lines you've hypothesized.

The case is simply about two different legal standards governing third party ownership of your "personal" information and the bankrupt legal rationale in Carpenter that has been applied to one segment of that information.

But thanks for giving the question a shot.

Ok, my tax purposes example isn't that indicative. Fine.

I think you fall for technical details and lose the spirit sometimes.

Remember my reply last year? it's on the previous page. How technology here risks this would no longer be the USofA? Check this:

It is a loss for the Justice Department, which had argued that an individual has diminished privacy rights when it comes to information that has been voluntarily shared with someone else.
The opinion, which was limited to cell-site location data, continues a recent trend at the court to boost privacy rights in the digital era and clarifies court precedent as it applies to data held by a third party.
Cell phones play a "pervasive and insistent part of daily life," Roberts wrote.
"Virtually any activity on the phone generates" the data, Roberts said, "including incoming calls, texts, or e-mails and countless other data connections that a phone automatically makes when checking for news, weather, or social media updates."
"Here the progress of science has afforded law enforcement a powerful new tool to carry out its important responsibilities," Roberts added. At the same time, he said, "this tool risks Government encroachment of the sort the Framers after consulting the lessons of history, drafted the Fourth Amendment to prevent."


If a moron like me last year, and the chief justice now, are both saying the same thing, I'd re-read and see what it is i'm missing.

 

[Colonel Hogan]

I think you fall for technical details and lose the spirit sometimes.

Remember my reply last year? it's on the previous page. How technology here risks this would no longer be the USofA?

This is a perfectly valid point, and I would not for one minute want you to think I have missed it.

Yes, whenever technology, social mores and values threaten to antiquate current law, our legislative bodies (primarily) and the judiciary (secondarily) have a duty to correct the situation through their Constitutionally stipulated authority.

It is just that when the judiciary does so through it's authority, it needs to exercise great care in proscribing either broad (or even narrow) CHANGES in previously existing legal standards lest the new legal standards threaten to create a patchwork of inconsistency and confusion with regard to regulated information and/or behaviors that are highly similar in nature or effect. I am a stickler for legal consistency as the law applies (or is supposed to) to legal theory!!

So, now if I were in your shoes and read that last paragraph, I'd hit me back with this: "So what I hear you saying, Colonel, is that, in light of the Carpenter decision, you think the Court did not go FAR ENOUGH, and that based on the Court's legal rationale, it should extend the definition of what constitutes a Fourth Amendment search to most, if not all, personal information held by third parties, yes"?

To which I would reply, "Well, in a manner of speaking.......YEAH!"

Now, in point of fact, I think the previous standard was perfectly fine and should not have been messed with. But now that it has, apply that new standard broadly, and NOT NARROWLY to avoid future philosophical inconsistencies in law enforcement.

To my mind, the Carpenter decision is not altogether dissimilar to if we rolled the clock back to the 13th Amendment and, rather, than prohibiting slavery categorically, only prohibited it with regard to those slaves who might have been Native Americans rather than also covering those who were black or Hispanic -- because the "nature" of being a Native American is of a differently quality and character (and somehow warrants different protection) than those of a "foreign" racial lineage -- even if the latter were brought here in chains.

Why the fuck as a matter of LAW would we make such a pointless distinction?

To extrapolate to Carpenter, if the old standard of "reasonable expectation to a right of privacy" is NOT reasonable based on "information voluntarily shared with third parties" has now been replaced in favor of something like "the very nature of the information at issue determines its qualification for Fourth Amendment protection," then apply that new standard across the board. Why wouldn't you?

Does that help to see where I'm coming from?