This is so obvious it’s sickening. Everyone associated should be fired. What an affront against the constitution.
It’s really not. The Third Party Doctrine has muddied the Fourth Amendment’s legal boundaries. The fact that a district judge originally ruled in the FBI’s favour should show that.
> Everyone associated should be fired
If they continue to think they did the right thing, sure. That’s incapacitation. But prioritising retribution isn’t helpful when restitution and deterrence are unfulfilled.
Perhaps I’m overindexing on the term “sickening,” but it seems unhelpful to bring an emotion like disgust into a technical legal discussion.
Where one has (and doesn’t have) a reasonable expectation of privacy isn’t trivial. I think it’s obvious that a cop who recognizes a fugitive in public is acting reasonably while the same cop doing a facial-recognition search at a public school parking lot may not. Where does searching public Twitter photos lie? What if they’re only accessible with a login?
If you can’t tell, I think the third-party doctrine as presently interpreted is wrong. But the history leading up to it is incredibly reasonable, recent and well documented.
When true is redefined to false, it tends to raise emotions to a high level. Injustice often results in people's lives being disrupted and ruined where the ruin never should have happened. We should be disgusted by injustice.
Sure, do that. This isn’t that. Being “disgusted” by the Third Party Doctrine, broadly, isn’t the same as being offended by injustice.
There are some pretty obvious and reasonable lines we could draw here. For example, is the thing available to the general population, or only to specific parties who haven't chosen to make it public?
This doesn't necessarily answer your question, because you might e.g. have a reasonable expectation that data which is ephemerally available to the general population is not being recorded en masse and indexed into a central database, but it provides a boundary that would have eliminated a large swath of the trouble.
I agree. The problem is we have, on one hand, the police absolutists, and on the other hand, people who want to express their outrage more than do anything real. Neither bothers educating themselves on the legal merits of the other side’s. Both turn the Third Party Doctrine into a totem.
The Third Party Doctrine was created by Congress. Barring SCOTUS overturning half a century of law (again), that means the Congress must remake it. The lack of a popular alternative directly leads to the Doctrine’s persistence. We could draw these lines. But we don’t because we’re too busy expressing conniptions.
No, the third party doctrine was a mistake.
> But prioritising retribution isn’t helpful when restitution
I'm not sure in this case, that is what is going on. The sequence of decisions at the FBI and DOJ were so terrifyingly bad that the carriers of the ideas leading to those decisions need to be removed from the institution. They are a cancer.
Firing would be a deterrent. Given qualified immunity, the consequences for this kind of abuse of power are small, and that's a factor in why so much of it happens.
I'm not necessarily a fan of creating such high stakes setups. But until these institutions are reformed around the concept of equity such that their victims are routinely and predictably reimbursed for the harms perpetrated by the institutions, we should fall back to insisting on criminal punishment for the individuals who enable them.