Supreme Court Rules Police Need Warrant to Track Your Cellphone
npr.org
npr.org
I own a "pen register". Recently bought it on eBay and restored it. It's a brass clockwork device on a cast-iron base in a wooden box. It prints dashes on a paper tape when connected to a dial phone line. It's extremely simple - one electromagnet and a wind-up mechanism, wound with a huge brass key, to advance the tape. A dial pulse starts the clockwork, a lever pushes the paper tape into an ink roller for each dial pulse, and when the input hasn't changed for four seconds, the clockwork stops. The timing mechanism is similar to Edison's stock ticker from the 1880s. Weighs about 15 pounds. It's a nice looking piece of machinery.
That's what cops had to use for most of the 20th century. Telcos themselves did not log call data except for long distance calls. Electromechanical switches had no large data storage devices. A pen register had to be physically connected to a single phone line, usually in a telephone central office. Someone had to check on it frequently and wind it. No way could those things be used for bulk surveillance. Hence the court's holding as to its "limited capabilities".
The legal system has trouble with scale. Today, every transaction a phone has with the switch is logged to a hard drive for nearly zero cost. Data logged per call has increased by many orders of magnitude since the days of the pen register and the Smith decision. But the court has not seen fit to overrule Smith. Yet.
For some definition of very long.
San Jose, for example, had 3 calling regions. Anywhere in Sunnyvale to SJ1 or SJ2 was local, but SJ3 wasn't.
I set up message broadcast systems for groups (such that a 100-second message could be broadcast to a database of contacts, loadable from a CSV file). I wrote a program to parcel out which calls were local from each point. 2 parallel systems, one in Sunnyvale and another in SJ3, could cover from Menlo Park to southern Fremont to Monte Sereno to almost San Martin with no calling charges to over 700 recipients.
The situation in rural KY on GTE in the early 90s was quite similar -- I even remember using 3-way calling to bridge an aunt who lived a county in one direction with a grandmother a county in the other direction. For us, either was a local call, but for the aunt and grandmother to directly call each other was long distance.
I'm not sure how this doesn't qualify as unlimited local calling?
So if you called Germany for 33 minutes they could charge you the correct international rate, but without the pen register they would have no idea what number you actually dialed.
By the late 80s they were logging numbers electronically. This applies only before that time.
Ironic. Today no one on a mobile device making a domestic call pays by the minute. Yet now that the data isn't necessary __for billing__ more and more of it is being logged.
Orwell was close. It's actually Big Data that's watching.
In context, that case is debatable but not patently ridiculous. However, for the last 30 years, BigCos and their $1000/hr lawyers have cited this "RAM Copy doctrine" that says copies of protected works into system memory are separate acts of infringement to bully anyone whose right to use some digital thing has come into question, claiming that they're owed money for each and every time the item in question has been loaded from disk into memory.
They use this to double-dip on scrapers, too. You may or may not get nicked for CFAA violations and/or issues with the way that you obtain data, but regardless of how you obtain it, they will try to count every time you've loaded the data into memory as a separate act of infringement.
Your conclusion seems right to me. The way that we extrapolate these rulings just doesn't jive with the pace of technological advancement.
KENNEDY THOMAS ALITO and GORSUCH dissented.
The mix of the court on this particular issue is amazing to me. Roberts is turning out to be one of the most balanced judges since Kennedy in terms of hearing a case of merits and not just ideology. Bush did something right bringing on that guy.
Roberts rightfully expressed no disdain for same-sex partners, nor did he express it should never be legal.
Rather, it should have nothing to do with constitutional law, (nor really even federal law).
Sadly all of our modern civil liberties are fought for on self-serving platforms rather than on a social framework consistent with civil liberties. In other words, people claim to be civil libertarians, but they act in a way which suggests they just care about an expedient pathway to the ones they personally care about.
If you would please (re-)read https://news.ycombinator.com/newsguidelines.html and use this site as intended from now on, we'd appreciate it.
Let's be careful not to define "balanced" as 'toward the center of the current justices' ideological spectrum'.
The spectrum of current justices does not represent a real-world or absolute spectrum. If Ginsberg and Breyer retired tomorrow, Roberts would be on the left, for example.
> not just ideology
Courts should not be applying ideology at all. That's for Congress and the President. Sadly, the SC, especially the right IMHO, is highly and unabashedly ideological these days.
That's why we use reason(and law), and not ideology.
As an example - and please don't shoot me - you could consider abortion rights. The Constitution certainly doesn't address this issue directly, or even indirectly. In order to make a determination, you have to formulate an opinion on the matter that turns on the rights of, and harms to, the various parties involved, as well as any moral absolutes that you hold true.
I can't see how there is any objectively correct answer to this issue that hinges entirely on reason and law, and therefore would be patently obvious. And, I would argue, that's true for MOST of the cases that the Supreme Court accepts for review.
If Citizens United loses that case, then there would be little standing in the way of, for example, prohibiting the NY Times from running stories critical of presidential candidates within 90 days of the election.
Why? Because the NY Times is a corporation. If the Supreme Court held that corporations don't have standing to claim First Amendment protections, then the NY Times wouldn't be protected either.
Are companies people? Of course not. But opinions on specific campaign finance laws notwithstanding, they have rights that should look a lot like individual rights in areas like speech because they effectively represent the collective action of that company--however that specific company is organized.
> If Citizens United loses that case, then there would be little standing in the way of, for example, prohibiting the NY Times from running stories critical of presidential candidates within 90 days of the election.
They could have decided the case on much narrower grounds. They could have returned it as improvidently granted. The majority wouldn't have had to conclude that "this Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption".
I do think there were interesting 1A claims in play, and I don't know how to handle those well. But the decision as written is just naive.
But they definitely could have ruled exactly the same way without making the insane "do not give rise to corruption or the appearance of corruption" comment.
That's just entirely absurd, and I think it's fairly obvious that it factually is wrong.
Nor did they have to rule the way they did in speechnow vs FEC, which is largely the case that people think about when talking about Citizens United.
You might not like its implications, but there are other, worse, implications if merely speaking about a subject (e.g. a candidate) can be considered a form of corruption.
There are limits on how much money any individual may give to a campaign that is not their own, and a prohibition against organizations (corporations, unions, etc) giving money to a campaign.
Why? Because there is a difference between spending your own money to enable your own speech (independent expenditure, the subject of Citizens United), and giving your own money to someone else to spend however they want (direct contribution, whose limits Citizens United did not disturb).
Limiting campaign contributions is a limit on speech, and limiting independent expenditures is also a limit on speech. Those that insist that one causes harm and the other does not have merely arrogated to themselves the right to define "harm".
Citizens United amplifies the power of those citizens who form corporations; government officials are now more likely to be responsive to their interests. This is consistent with the principle of "equal opportunity but not equal outcomes", in that any citizen can theoretically form a corporation, so it can be argued as not discriminatory.
In practice it is the wealthy who are benefit from speaking with the voice of a corporation, and the power of non-corporate individual citizens is diminished correspondingly. But again, a consistent theme of conservatism is that freedoms of the wealthy should not be unduly constrained.
Justice Souter
Hadn't heard about this, though. It is certainly a juicy story. Some people think that Roberts delayed the ruling on the case in order to keep Souter's dissent from being published. Bears more looking into, for sure.
In terms of interesting splits, South Dakota v. Wayfair Inc. (recently subject to much discussion on HN) had a super interesting split. The majority opinion written by Kennedy and joined by Thomas, Alito, Ginsburg, and Gorsuch. The dissent was written by Roberts and joined by Justices Breyer, Sotomayor and Kagan.
The real missing piece goes back to the same fear the framers had when enacting the Bill of Rights in the first place — namely that by enumerating some rights it would inadvertantly serve to exclude those unenumerated but equally inalienable rights, such as right to self-determination and ownership of one’s own body.
However, this doesn't establish a right to abortion. The justices clearly state that it is not a right by saying it's not covered under the 9th.
It sounds to be threading one hell of a needle as a justification to keep government out of elective abortion. I mean, we have databases which track every narcotic prescription written which law enforcement (including the DEA) can access without a warrant.
That appears to be exactly what it’s doing though!
The registry is not supposed to about who has a prescription, but rather, who has more than their legitimate share of prescriptions. It’s also supposed to be used to identify over-prescribing doctors.
Given that the framers were living in a society where that right was distinctly "alienable", and either were themselves or needed to appease interests that insisted that said right be alienable, I'm not sure they considered that one.
A more charitable, and frankly, reasonable explanation would be that Gorsuch places high priority on limiting government power through to take private property and thinks of many problems through that lens. That's a view he expressed at oral argument in this case[0], in other privacy-related cases [1][2], and in cases in other contexts[3][4].
Virtually all non-unanimous supreme court decisions are ultimately trade-offs between conflicting rights and values. Congress's power to regulate drugs vs a citizen's right to use drugs in religious ceremonies (Smith). The documentary-maker's right to free speech vs the population's right to ensure free and fair elections by limiting corporate spending on elections (Citizens United). A citizen's right not to be searched for incriminating evidence without a warrant vs. a police officer's need to prevent destruction of evidence and ensure their own safety (Robinson).
Different justices place different weight on different rights. Kennedy is a famously protective of free speech, so whenever Free Speech is implicated, he tends to side on the defense of it. Alito places a lot of value in ensuring police have workable rules that can be applied in the field. Those priorities determine where they land on tough issues and how they think issues should be resolved.
I think there's a lot of evidence to suggest Gorsuch cares about protecting property rights and that idea is entirely consistent with his reasoning here (without his harboring a secret anti-Roe agenda).
[0]https://www.oyez.org/cases/2017/16-402 [1] http://www.scotusblog.com/2018/01/argument-analysis-rental-c... [2] https://www.ca10.uscourts.gov/opinions/13/13-7082.pdf [3] https://www.supremecourt.gov/opinions/17pdf/16-712_87ad.pdf [4] https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...
There's still a lot of gray area though -- it's easy to say that the money in my bank is my property, even where it is in the care and custody of a third party, so by that argument, Gorsuch's property argument gives me more privacy protections for non-warranted searches to my banking data, but on the other hand, it's not clear that my Google Map data is 'mine', since Google provides it as a service to me for free, and uses that data for other purposes.
I didn't understand him to be quite saying that. I understood him to be saying, "information about oneself is property. The government may not take your property without cause even someone else is holding it for you. Ergo, they cannot take the information here."
As you note--there's a debate that would need to be had whether this is your information that you've given them, or their information that they've created about you and the analogy breaks down a bit for me where that isn't perfectly clear.
Roberts seemed during oral arguments like he might have been trying on the information-is-property argument, "This [data] is not simply created by the company, though. It's a joint venture with the individual carrying the phone. That person helps the company create the record by being there and sending out the pings or whatever." That he writes against it here suggests he either didn't like where it led, or possibly couldn't get a majority to sign on to an approach that would uproot Katz when neither party was asking for it.
Yep, definitately not clear. But that's why it's a good for courts to start thinking about such things so that principles can emerge out of real-world cases.
My guess is that data-ownership is mostly bunk ("information wants to be free"). But privacy advocates who think in those terms are on to something and "ownership" is just the nearest model we can think of. Over time we can evolve a clearer idea of of what that something is.
Here
1. He disagrees with literally all of the reasoning. He doesn't want to affirm the judgement because he thinks it's just plain wrong.
2. It's not clear he would agree with the outcome on this record either. He basically says the record isn't well enough developed on any of his points to figure out what should happen, and that the arguments he would make were forfeited.
That suggests he may actually be in the camp of "i think all of the reasoning here is nonsense and wrong, and you forfeited all other arguments, so you lose".
As a result he's dissented and literally written down "for the love of god, the next time someone appeals a case like this, please make the following arguments"
What’s left of the Fourth Amendment? Today we use the Internet to do most everything. Smartphones make it easy to keep a calendar, correspond with friends, make calls, conduct banking, and even watch the game. Countless Internet companies maintain records about us and, increasingly, for* us. Even our most private documents—those that, in other eras, we would have locked safely in a desk drawer or destroyed—now reside on third party servers. Smith and Miller teach that the police can review all of this material, on the theory that no one reasonably expects any of it will be kept private. But no one believes that, if they ever did.*
https://www.supremecourt.gov/opinions/17pdf/16-402_h315.pdf#...
Judges are supposed to decide cases based on “democratically legitimate sources of law”—like positive law or analogies to items protected by the enacted Constitution—rather than “their own biases or personal policy preferences.” Pettys, Judicial Discretion in Constitutional Cases, 26 J. L. & Pol. 123, 127 (2011). A Fourth Amendment model based on positive legal rights “carves out significant room for legislative participation in the Fourth Amendment context,” too, by asking judges to consult what the people’s representatives have to say about their rights. Baude & Stern, 129 Harv. L. Rev., at 1852. Nor is this approach hobbled by Smith* and Miller, for those cases are just limitations on Katz, addressing only the question whether individuals have a reasonable expectation of privacy in materials they share with third parties. Under this more traditional approach, Fourth Amendment protections for your papers and effects do not automatically disappear just because you share them with third parties.*
https://www.supremecourt.gov/opinions/17pdf/16-402_h315.pdf#...
I think it's total BS to think that "users don't have an expectation of privacy" when a company offers a service to hold and process their data. I don't think in any other real-world situation that's similar you wouldn't have an expectation of privacy. It's just the government's twisted logic that's used to justify its mass surveillance actions.
I also agree with Gorsuch's point that the standard should be much higher than "an expectation of privacy". If you have an industry that has "educated" its users to expect constant violations of their privacy and misuse of their data, it doesn't mean that now users should no longer benefit from privacy rights, because the companies and governments are so used to abusing users' data that they might as well be allowed to do it. I don't think that sort of logic makes sense.
Why not? Unless I’ve missed something important, his legal interpretation and application so far seem to be fair, balanced, straightforward, and non-partisan.
The irony there is that there's probably no person on the court more predisposed to ruling against Trump than Gorsuch is.
Of course, everyone will likely feel justified in hating him when the Trump v Hawaii decision is released, unless it's 8-1 or something in favor of Trump.
I'm mobile, so I'll try to make this brief, but in _Sessions_, for example, he expressed concerns on how vague or poorly written laws afford the government too much power. In _Gutierrez_, he (unusually) wrote the majority opinion, and then also a concurring opinion that I assume he couldn't get other justices to sign on to, which effectively bashed Chevron deference.
_Chevron_ was a case largely believed to have set the stage for much of what people see as abuses of federal authority holding (basically) that an ambiguously crafted statute that does not expressly give a government agency over an authority over an area, but which could maybe sort of be interpreted that way, then you should find in favor of the government, because they're the experts.
Gorsuch believes that giving the government powers that Congress did not expressly intend is an abdication of judicial duty, and that we shouldn't interpret ambiguity as a blank check. He thinks that if Congress intends to give <agency x> authority over a specific domain, then they should say that explicitly.
TLDR, the deference that Chevron establishes as precedent in government cases most largely benefits agencies operating under the executive branch. Trump runs the executive branch, so that cuts in his favor. Gorsuch believes (more than the other justices) that they do not deserve that deference, and that laws should be interpreted to mean what they say.
And it was a gamble, as most of the Republican leadership in congress fully expected Trump to lose, in which case Hillary might have nominated someone considered even more liberal than Merrick Garland.
If that had happened, and that person confirmed, would they be sitting on a stolen seat too?
And people did decide... In 2012 when they voted for Obama by like 51%. Lame duck presidents have gotten SCOTUS seats before. Reagan nominated and had a confirmation in his final year by a supermajority.
Regan's last nomination was an interesting one. With his first nomination for the seat coming nearly a year and a half before the next election. Then going through another potential nominee, with Kennedy not being confirmed until early 1988.
Regardless, all I'm saying is I understand the reasoning for not wanting to let Obama appoint a SCOTUS justice in his last months. They could have gone the other way and let it come to a vote. Republicans would certainly have had the numbers to block it (and the yays needed 60 then). And then Obama would have appointed someone else, and so on until the election was decided and the next president in office.
Though I have no doubt the Republican leadership would have acted differently if a seat was open during the last days of a Republican administration.
Either way, Gorush's seat is no more stolen than a Hillary appointee would be.
There was no reasonable excuse in 2016 either lmao.
The method they chose instead was illegitimate, and that's why it is a stolen seat.
That's understandable.
> months before a presidential election
I don't think you understand the definition of "lame duck". It refers to the period between election and inauguration. It is completely unreasonable to treat the entire final year that way.
There's a stronger case that Thomas is non-partisan than Gorush, Occupant of the Stolen Seat.
I would agree that Justice Gorsuch is ideological, but he does not seem particularly partisan.
I am happy about Gorsuch. I am appalled that Trump has continued Obama's use of executive orders to get his way (I was equally appalled when Obama did it). I'm disgusted by the continued irresponsible deficit spending. I'm pleased by the burning pile of regulations that have been axed from the federal register. I'm annoyed by the tariffs, but I will tolerate them -- the aerospace company I work for recently transferred nearly $1Bn in IP to a Chinese JV as a precondition to gain access to the Chinese market. Trump is actually correct about that problem. The border separations were reprehensible, but 'catch and release' encouraged human trafficking of children (a child, any child, was a ticket into the USA) and was an equally bad plan. Would I say that I don't have a party? Well, I do -- the Libertarian party -- but I don't think they'll ever win so I usually vote Republican.
I guess my point is, nobody will ever be completely happy with any president or any political party, and even people with ideologies tend to be pragmatic when it comes time to vote. I think that includes supreme court justices, when they must vote on the outcome of a case.
Originalism never made sense to me. The constitution was written by visionaries who intentionally wrote it as a framework to serve as the foundation of a revolutionary new nation. It is vague by design so as to be forever relevant. I strongly suspect the ratifiers themselves would not be in agreement on a whole host of constitutional cases before the courts. Even just the idea that the text holds some singular, original, unchanging intent, seems bonkers. But not only that, originalists justices claim to have some method of knowing what it is!
Not trying to start a fight, but that's why he's not my favorite. Based on his interesting dissent it seems like he and Sotomayor may be the strongest 4A proponents on the court, so there is hope I may like the direction of many of his decisions. Though I may not like how he arrives there.
However, it's clear that the ratifiers had particular principles in mind, and that those principles are both discernible with careful textual criticism and applicable to modern cases.
> Even just the idea that the text holds some singular, original, unchanging intent, seems bonkers.
To think the text doesn't hold an unchanging meaning seems bonkers to me. How can the principles expressed in a legal document change over time? Sure, its application will change (or it ought to), but IMO to allow a text's interpretation to change is to (a) allow room for the text's principles to be ignored, (b) erroneously conflate legal interpretation and application, and (c) allow ourselves the freedom to "go with the flow" of modern trends and become unfaithful to the text.
I don't see how one can faithfully uphold the US Constitution (or any legal text, for that matter) without interpreting towards the authors' evident intent, analysing the principles behind it, and applying those principles. The text didn't arise out of a vacuum, and our interpretation doesn't have to either. We have a lot of help in the Federalist Papers, letters the ratifiers wrote, etc. -- all of which provide a helpful, reliable commentary.
In attempting to sever the real author from the text, postmodern literary criticism really dealt a hard blow to truth in textual interpretation. "Open text" legal jurisprudence is only one part of the fallout.
But constitutional cases tend to deal with a lot of specifics. How much bail is "excessive"? How long until a trial has not been "speedy?" When is "due process" satisfied? If we were to ask these and similar questions to Madison, I think his answer would be something like, "the courts should figure that out." I don't think the meaning of these things has changed significantly over time. I suspect they were as broad and vague in the mind of Madison as they are to us.
The courts should rule in a way that is in keeping with constitutional principles, but also that creates good outcomes. The first part of that equation comes from the constitution and the past, yes. But the second part requires that we apply knowledge from the present.
I’m a fan of Gorsuch because he doesn’t seem to do that... Originalism as I see it is the opposite of open text jurisprudence, where the text is viewed through modern values and assumptions and made to bend to them.
* Feel free to replace cellphone with "magical device almost everyone carries that constantly reports their precise location to a register that stores it for up to five years". :)
This in turn makes no sense to me.
Why would they go through the immense trouble to make this constitution, if they thought it could mean anything people wanted in the future?
How would that be different from the normal state of the time, that had no constitution?
But to your point, it's not that they wanted it to mean anything. It's just that the constitution is broad and vague, not because we lack historical context or some window into the mind of Madison, but because it is intentionally vague. Let's take the relevant amendment here:
> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause...
That phrase "probable cause." Not very specific to my mind. It can't mean anything at all, but it leaves most questions unanswered. Is an anonymous phone tip probable cause? If an officer pulls over a car and the driver is sweating and nervous, is it probable cause to get a warrant to search his house for drugs? What if the driver smells like drugs? What if he is carrying lots of cash? What if there is blood on his shirt? And on and on...
Without the hundred plus years of case law that have worked to develop tests for what qualifies and doesn't qualify as probable cause, it really might mean almost anything. What good does it do to ask, "What would James Madison have thought about a driver that smells like drugs?" He probably would have thought it was an interesting legal question for the courts, that's what! Judges should figure that out by trying to predict the real world outcomes of their decisions, not reading tea leaves in the Federalist papers.
But yea, just like my, opinion, man.
Since you can't foresee every possible future circumstance, you try to establish a general principle to apply instead.
But I don't think that means all parts of it was intended to be freely reinterpreted to mean anything the people in power in the future wanted. I think the main purpose of the constitution was to prevent that!
I sometimes wonder if companies put exactly this wording into their privacy policies if it would make a difference legally. Right now they put all kinds of other verbiage which allows law enforcement to argue around it. But what if companies simply wrote into their privacy policy:
By storing your data with us you can reasonably expect that your data will be kept private from access by any other person
Now how can law enforcement argue that someone accessing the service didn't have a reasonable expectation of privacy?
Of course, a company's lawyers might say that this is something they can't actually deliver given the government can demand to access their information. But it's exactly in this way that it's a self-fulfilling prophecy: it is exactly by giving this guarantee to their users that they create the legal argument they need to be able to deliver it. And it is exactly by not giving this guarantee to their users that they deprive themselves of the legal power to achieve it.
To my reading, he's saying two things in his conclusion:
* His dissent would be a concurrence if he could have found in Carpenter's favor on propertarian grounds, but Carpenter's lawyers didn't raise any 4A property arguments, so he couldn't
* A finger-wag to future lawyers to please bring him some property arguments so that he can rule the way he wants to.
On the whole though, I honestly think that if he didn't already know that the majority would carry the day with 5 justices, he might have been okay just offering a concurrence.
It's very sad to see people skewer Gorsuch in this decision - and in general. His opinions are consistently interesting and well-reasoned, and this is no exception.
Requiring a warrant is an extremely low bar to pass. Yet somehow law enforcement has been moving away from even that cursory glance since 9/11. We keep seeing these arguments about how burdensome warrants are, but judges routinely rubber stamp every warrant request that comes across their desk.
The reality is that this has nothing to do with "warrant Vs. no-warrant" that's just the headline, when crimes are suspected warrants are trivial to get. The fight really being had here is "warrant Vs. routine monitoring."
That's what law enforcement want from this: If you know someone that knows someone that might have committed a crime, they want to invade your privacy "just in case." As I said, if you were directly tied to it a warrant is easy, they want to expand the scope of monitoring.
That's a good thing, as it creates a virtuous cycle. There is accountability and more transparency, vs an internal process where the whims of an official, or a failure to have adequate controls inevitably leads to problems.
I'm completely on board with this ruling; the 3rd party doctrine is complete garbage in the digital age, but I think it will have a much narrower effect.
I also don't think this ruling will have any effect on mass surveillance that is justified on a completely different legal basis.
But depending on the workload of these people, this can also mean a whole lot of back-log and result in hasty decision making.
Germany has a similar trend where judges are supposed to issue warrants for pretty much everything, like searching your house.
The problem in actual practice with this is that German judges are already overloaded with all kinds of work, which means they have on average around 3 minutes to process a search-warrant request, that time also includes writing the explanation for why it was denied if it should be denied.
3 minutes isn't a lot of time and getting it wrong can have pretty hefty consequences for the wrongly accused because these days it's often routine to confiscate all the IT hardware and any data media they find.
If you are somebody who's self-employed and working in IT, such a search could literally be the end of your business, because it will be years (and many lawyer fees) before you get your stuff back, even if it turns out you never did anything wrong.
I don't really see any real solution to this that doesn't involve either law enforcement toning down the number of requests for warrants or jurisdiction needing to expand its capacities, to allow judges more care in checking individual warrant requests.
Who's actually auditing these people and holding them accountable?
When was the last time someone lost their job because they issued too many warrants, or were too lax in issuing them?
Is a warrant more than just a rubber stamp?
"Supreme Court asks surveillance state to wear a fig leaf" might be a more accurate title.
It is a vicious cycle as the public has no way to actually find out about bad actions or negligent actions. Public officers in a bureaucracy have broad discretion to implement or ignore controls and are minimally accountable.
In the actual justice system, law enforcement, prosecution and judiciary all have different interests and all have formal process for interaction. For the most part, we know how many warrants are issued, because of court filings. In most cases, state/local prosecutors are elected officials directly subject to the consent of the people. In many cases judges are as well.
That's not to say that the justice system is wonderful and perfect. There's a balance between your privacy and the public interest to prevent crime. We also have things like civil forfeiture that are problematic. But for the most part, we don't have the police feeling empowered to randomly search our cars or homes, because of the legal protections re: search and seizure and the warrant process. That was happening with cellular phones, and this judgement will help eliminate the practice.
Exactly right.
> That's what law enforcement want from this: If you know someone that knows someone that might have committed a crime, they want to invade your privacy "just in case."
It's worse. While they will say that's what they want (and they do want that), what they really want is to look at anyone at any time for any reason. Say, if you tweet something disparaging about police they'd love to be able to look at your info without asking anyone, to see if they can find something on you.
Warrant applications getting denied may be rare in most jurisdictions, but that doesn't mean they are rubber stamped: what probable cause requires in common circumstances being well established by precedent and practice, there is little incentive for law enforcement to waste their own, and judges‘, time on a invalid applications.
Because without a warrant requirement they can request vast troves of data, to be stored indefinitely.
Provide numbers or data or real insight on this. You simply saying it does not make it true or factual.
99.97% warrants were approved by FISC between 1979 and 2012.
> It doesn't remotely apply to this case
You have to read comments within the context they were given. This is a broader discussion about warrants, and the specific comment I was replying to asked for data on claims of "rubber stamping" of warrants.
https://www.washingtonpost.com/news/the-watch/wp/2017/08/10/...
1) law enforcement at least does the minimum necessary to be compliant with that warrant and the constitution
2) without the warrant required, there may be (and there is) an additional 10,000% of citizen tracking.
When a warrant is not required, law enforcement can target orders of magnitude more citizens than just "crime suspects" that need to be presented before a court in a warrant.
I refused, was taken in, given a 'Strafbeschikking' which would have given me a criminal record without going through a court.
I knew the law, knew what I was doing, appealed and won.
But they are constantly stretching boundaries ( ID, ANPR, cell data, internet monitoring and on and on and on ).
Scary.
Also consider that the internal policies of the DOJ are often more restrictive than the restrictions applied by the courts. The government has good reason to avoid testing the boundaries of the law, lest they generate unfavorable precedents that tie their hands down the line.
I hope that illustrates the folly of both statements.
The government has nothing to lose by testing the boundaries of the law, because there are so many undefined and underdefined boundaries. An unfavorable precedent every now and then is a very small price to pay, particularly when playing fast and loose with the rules lets them bring so many more cases. It's like saying one daily speeding ticket resulting in a warning will stop people from speeding on a busy urban interstate.
That said, most warrants to collect evidence are not issued to the DoJ, they are issued to state and local prosecutors, who are often more aggressive than DoJ is (in part because so many AGs are elected, IMO).
It was moving in that direction long before 9/11. It just gained mass notice when everyone started taking off their shoes at the airport.
I agree, it is unfortunate that for almost two decades fear has overridden rights and warrants even though they are easy to obtain and explicitly stated in the 4th. Warrants provide visibility by at least another party and make mass surveillance more difficult. Maybe warrant records need to be public after x amount of years as well to help monitor surveillance abuses.
Warrants need to extend to all your digital data not only as a protection against unneeded surveillance but to protect business ideas, data and more which corrupt watchers may be intercepting without this oversight of a warrant. Decades in the future if this mass surveillance continues it will be compromised by corporate espionage, compromised people/assets by foreign powers and much worse.
We essentially need an amendment that affirms digital data as part of your "persons, houses, papers, and effects". It could be argued that digital data are your "papers" and "effects".
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
However, my guess is law enforcement using surveillance has become the normal procedure since 9/11 two decades later and recent technological advances (i.e. triangulation, NSLs, metadata, association, IMSI catchers, stingrays, etc) rather than warrants and detective work, the latter which is truly the desirable configuration of justice per the Constitution.
Currently it is way too easy for enforcement to monitor people without a warrant. Noone even knows who owns what stingrays and IMSI catchers even in D.C.[1] I wonder if enforcement even knows how to do actual detective and warrant based work after two decades of abuses. Foreign assets definitely are abusing these systems as well as corporate espionage, blackmail/kompromat collection and more.
> An undisclosed number of surveillance devices known as “Stingrays”—used to track and intercept smartphone communications by posing as legitimate cell towers—are suspected to be in operation across Washington D.C., leading to fears foreign governments are using them to snoop on the capitol. [1]
Too much surveillance and too much data collection without warrants becomes a security hole and a bigger issue than just doing detective/warrant work on actual targets instead of everyone.
I am very happy SCOTUS isn't fully compromised as of yet and this is a victory in privacy but only a step. Privacy invasions based on fear will end badly if it isn't curtailed, not just for individuals but for businesses and nations from corrupt people and foreign assets that use those systems against us.
[1] http://www.newsweek.com/who-tracking-dc-cell-phones-homeland...
Getting a warrant is "easy" (far too easy) -- unless you want to get one on every person in your jurisdiction, forever.
For those who have not read a supreme court opinion before, I recommend it. They are written in plain english and understandable by laypersons, and usually very well written.
This case may have made a mess of things. Maybe the right answer here is for Congress to clarify what the digital equivalent of a safe deposit box is.
1. The article says “Roberts noted that the decision also allows for warrantless cell-tower location information searches in emergencies and for national security purposes.”
This leaves the door open for any agency to claim that any historic GPS data was obtained for “national security purposes”.
This is troublesome because if the government is abusing their power there is no way to hold them accountable since they do not have to explain the specific reasons for accessing the data if doing so will “compromise national security”. It is a bit of a loophole in my opinion.
2. Another article (https://www.cnet.com/news/supreme-court-says-warrant-necessa...) mentioned “While the decision sets a ruling for historical GPS data, the Supreme Court said it does not apply to security cameras, business records or real-time location tracking.”
This means that any other data can still be obtained without a warrant under the CLOUD act which passed just a couple months ago.
https://www.eff.org/deeplinks/2018/03/responsibility-deflect...
FWIW, that's not how I read Robert's opinion. He said that this decision didn't decide those (at least partially because it wasn't the question presented).
> This means that any other data can still be obtained without a warrant under the CLOUD act which passed just a couple months ago.
Isn't the stored communications act much more meaningful than CLOUD here?
Do you really expect a full digestion of the opinion in that time frame?
Took me all of 5 minutes to ctrl+f through the doc and find each record.
To save you some time, the issue seemed to be that the individual does not create, maintain, or store the records in question, so the 4th amendment does not apply in this instance.
https://en.wikipedia.org/wiki/Nina_Totenberg
The reason there's no analysis here is because there isn't a market for it.
Expecting journalists to have second degrees in law isn't a reasonable standard, if for no other reason than the financial burden it'd inflict on an already fairly low paid profession. (Hell, many lawyers struggle with their law school loans.) Chances are she's cultivated plenty of legal minds to help with analysis - perhaps even one or more of the justices themselves.
Who said anything about a second degree?
News organizations like NPR like to be accurate when being accurate will only take a few hours of work. And I'd rather they be correct than fast.
> We decline to extend Smith and Miller to cover these novel circumstances. Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user's claim to Fourth Amendment protection.
The unique nature being:
> when the Government tracks the location of a cell phone it achieves near perfect surveillance
Also see this great thread that looks at the decision: https://twitter.com/elizabeth_joh/status/1010166193473417216
1) Does the individual have a reasonable and historically legal expectation of privacy over the information in question? (In this case, detailed location data and yes)
2) If the information is stored with a third party, does the user "affirmatively" turn over that information, or is it collected with or without their knowledge? (In this case, cell location data is the latter)
3) Is the data "detailed, encyclopedic, and effortlessly compiled" (this from Jones)?
4) Cell phones are "'such a pervasive and insistent part of daily life' that carrying one is indispensable to participation in modern society".
This seems like a pretty positive expansion of digital privacy rights re: government searches. Specifically, cementing the Jones decision about pervasiveness and ease-of-dragnetting being a factor is good law.
As the reasoning is fairly clear and straightforward, one would hope the court would follow for similar devices (e.g. car GPS data or voice assistants).
http://www.scotusblog.com/2018/06/opinion-analysis-court-hol...
Further write-ups by them will come out as people have time to read the decision. You can also look at the 15 previous SCOTUSblog posts about this case before the decision was released which dissect the relevant issues:
http://www.scotusblog.com/case-files/cases/carpenter-v-unite...
Looking side-eyed at the definition of "legitimate privacy interest", because I would think that any request for almost any business records of a person would involve it.
Not in an absolute sense. A concerned citizen might want to be helpful to police by providing them lots of information, and that shouldn't need a warrant. But it seems like a pretty strong signal that, if the police are asking for it, it is more likely to be private.
I don't see any specific mention of the Stingray in any of the articles I've seen on this, but from the surface it would seem to indicate police would need a warrant to use a Stingray to target an individual.
Anyone else got more info?
However this does indicate the way that the supreme court leans. Not only does this suggest they would rule against stingrays, but it also might push lower courts to also rule against them.
Of course, I think they should be subject to the same restrictions and oversight. It's encouraging that the SCOTUS seems to be recognizing (to some degree) the relatively new and uniquely horrific potential of unchecked electronic surveillance.
> "He took pains to point out that the ruling did not “express a view on” other privacy issues, such as obtaining cell-site location records in real time, or getting information about all of the phones that connected to a particular tower at a particular time."
http://www.scotusblog.com/2018/06/opinion-analysis-court-hol...
It’s questionable to me that where the bits are stored is even a relevant component of a multi-prong test, let alone an overriding factor.
The way the bits are accessed is certainly relevant but the location of the network attached hard-drive should have absolutely zero bearing.
This would have squared up well with the issue of offshore data warrants which got punted off the docket after new legislation was enacted to provide a compromise solution to that specific issue.
In any case, a great step in the right direction.
ISTM that that's much more a task for the legislative branch than SCOTUS. Now congress is also defunct to a significant degree, but there's some limits to what you can infer from the constitution...
> The way the bits are accessed is certainly relevant but the location of the network attached hard-drive should have absolutely zero bearing.
Hm, but that's not really the question, is it? Email contents, and likely online storage contents, already has a warrant requirement.
Also: "the decision also allows for warrantless cell-tower location information searches [...] for national-security purposes." Sigh.
“We hold only that a warrant is required in the rare case where the suspect has a legitimate privacy interest in records held by a third party"
IIRC the current 4th amendment interpretation, 'third party doctrine' says that is a rare situation. However, Roberts also wrote:
“While the third-party doctrine applies to telephone numbers and bank records, it is not clear whether its logic extends to the qualitatively different category of cell-site records,” he wrote. “After all, when Smith was decided in 1979, few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements.”
“When the government tracks the location of a cell phone,” the chief justice wrote, “it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.”
Also, this seemingly ignorant comment from Kennedy (i.e., it seems a meaningless distinction), though he's not quoted and a brief summary so it is prone to misunderstanding:
In dissent, Justice Kennedy wrote that GPS devices provide much more precise location information than do cell towers.
https://www.nytimes.com/2018/06/22/us/politics/supreme-court...
Before, government investigators were dealing directly with the communications providers and bypassing judicial oversight.
This is a sensibly balanced way of thinking about the Fourth Amendment.
http://www.latimes.com/business/la-fi-verizon-location-data-...
You practically can't opt of this or are often unaware given the complexity of an average app's TOS.
https://arstechnica.com/tech-policy/2017/07/fbi-didnt-need-w...
Basically, this ruling means nothing in the grand scheme of things. We are being tracked without our permission & the police can probably get as much info from the US government agencies by just asking for it.
I might be misreading, but if they need a warrant to track, wouldn't they need a warrant to get a singular location for an actual 911 emergency?
The shit part about this is that this ruling is going to be very visible and people are going to try to make this data useless.
Paper has become digital.
Specifically 18 U.S. Code § 2703 means the government can request location information [1] with a court order as described by (d). The standard for the court order is "reasonable grounds to believe that the contents ... are relevant and material to an ongoing criminal investigation".
reasonable grounds << probable cause
[1] under (c)(1)(D) as the cell location is not ljisted (c)(2)
Someone reneged on his promise to avoid 5-4 splits.
Gorsuch appears to have dissented because he disagreed with the rationale of the decision and felt the 4th Amendment protections should be far stronger.
In that case why did he write a dissent and not a concurring opinion? Isn't that what they are for, or have I misunderstood?
Source? The way I read it there doesn't seem to be any such restriction.
IIRC there weren't corporations in the modern sense when the bill of rights was written.
The Bill of Rights is a set of 10 amendments that restrict what the federal government can do with respect to citizens. The 14th amendment extends those restrictions from the federal government to include state governments as well. (Since local governments are considered extensions of the state government's jurisdiction, it's included as well).
> IIRC there weren't corporations in the modern sense when the bill of rights was written.
The Virginia Company is a corporation in the modern sense that is literally the origin of the United States. Actually, if anything, corporations have gotten less powerful since the Bill of Rights; we don't have any companies running countries any more.
The Dutch East India Company was a publicly-traded multinational corporation as early as the early 1600s.
If I'm a cell phone company and decide to just give the government access to all data I have pass through my systems, is that allowed? What if the government gives me some benefit in return for it?
> Lo and behold, Carpenter's general location information matched the robbery locations, and that information was used to help convict him. Carpenter appealed his conviction to the Supreme Court, contending that the Constitution required that police first obtain a warrant before getting this location information from a service provider.
This paragraph makes it seem like the govt must get a warrant before it can ask the service provider for that information.
FYI, the legal term you're looking for is "state actor". In case that helps with googling.
Supreme Court rulings are narrow in general, and this opinion took pains to make it narrower than normal.
Companies need to know where you are so they can route your call, bill the appropriate party the correct amount, and credit the appropriate tower operator.
https://www.nytimes.com/2014/01/19/opinion/sunday/madisons-p...
many things aren't considered on their merits simply because the conservative face has done or said things they disagree with even though it is completely unrelated to lawmaking or anything congress would even consider.
any dissent is seen as support for the current administration.
any dissent is seen as TACIT consent for race-based discrimination, xenophobia, and gender based assault and inequality.
any dissent elevates you to being the spokesperson of everything they hate.
I understand why. Everyone's entire political party needs to operate as a unit to swing power in their favor.
but it is so one dimensional that many people reject it, since there always is a gradient for each separate issue.
conservative in this context doesn't mean anti-progressive, or risk averse, or traditional. it is just a political grouping, but in the bay area it means even slightly considering the merit behind a not-democrat party proposal.
I'm not just talking about a colloquial US usage. This is also how history books divide political forces when describing past societies.
but thats what we are talking about, thats what context means
its as fluid as any variable name you add to a program, in this case that variable's name is conservative.
if your observation became "hey that party self-identifies with the wrong word and maybe there is a historical reason for this" then yes, that is correct
They do certainly apply wholly to ideas, though.
But if you vote republican, I do very much agree with the first 2 points.
which is funny because now all sides, of two, think each other as fascists.
democrats think republicans are fascist because the lack of reprimanding against insensitive ideas, while the republicans continue to promote bigotry with no focus on civil rights
republicans think democrats are fascist because democrats want to reprimand any voters that don't vote democrat and didn't waste their vote on a non-republican party
all while nobody actually does what fascists actually did
Hope the mods split it off.
There is indeed a performative aspect to a broad discussion, but it offers the advantage of raising broad based issues that just might not occur to an individual in a limited closed session.
While HN is not immune to the cons of online communities, I feel a generally civil tone, free of political snark, or heavy biases can be maintained.
As personal profit and selfishness takes a greater precedence than the wellbeing of the public, the commons must suffer tragedy.
Generally, via Pigovian taxes that internalize the externality consistently without creating additional distortions or utilizing arbitrary ad-hoc regulation — ideally in a revenue-neutral way via dividends.
See, for example, the Trent Lott-John Breaux group announced this week to push for the Baker-Shultz carbon dividend plan (supported by economists including former CEA chairs Greg Mankiw and Martin Feldstein and Fed chairs Ben Bernanke and Janet Yellen).
(It should be noted that the Clean Air Act and the formation of the EPA came under Richard Nixon, of all people.)
[0] Americans for Carbon Dividends (new group, political): http://www.afcd.org
[1] Climate Leadership Council (old group, academic): https://www.clcouncil.org
[2] AFCD Article: https://www.nytimes.com/2018/06/19/climate/carbon-tax-climat...
[3] This year's op-ed on AFCD: https://www.nytimes.com/2018/06/20/opinion/climate-change-fe...
[4] Last year's op-ed on CLC (economists): https://www.nytimes.com/2017/02/08/opinion/a-conservative-ca...
[5] Last year's op-ed on CLC (politicians): https://www.wsj.com/articles/a-conservative-answer-to-climat...
To put it another way, if you’re a single-issue voter in favor of Pigouvian taxes on greenhouse gas emissions, you’re probably better off voting straight-line Democrat than straight-line Republican. If it were a question of whether to implement a Pigouvian tax or, say, subsidies for wind and solar, that would be a different story (and there’s a decent chance that I’d vote Republican).
In the meantime, how many trillions of dollars will we spend to address relatively immediate impacts such as flooding in coastal regions and changes in growth patterns for crops? And how many trillions of dollars will we add to the cost of reversing climate change's effects - if it's even possible to reverse them at all? Not to mention non-economic consequences like the disruption of marine ecosystems.
[0] https://news.gallup.com/poll/168620/one-four-solidly-skeptic...
https://text.npr.org/s.php?sId=605007387
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