Federal Court (Finally) Rules Backdoor Searches of Data Unconstitutional
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which is per-se unconstitutional, violating postal secrecy. they still think they are in war-times since the 30ies, and can store all meta-data and content in full. they are in war actually with all citizens.
Section 702 allows to collect all communications between American citizens and non-citizens, and communications between non-citizens, without any warrant. The issue is: does one need a warrant to search any data about a US citizen in 702 collections? Here, the court says it violates 4A.
Can we please start making open hardware without Apple/google backdoors and stop pretending our systems are "secure".
Can we please write all software in Rust and stop using languages that weren't designed for security. Yes C is beautiful. Yes it also lets you shoot yourself in the foot.
Can we please use distributed systems to avoid censorship or holding our private information in the hands of the rich?
>Can we please write all software in Rust and stop using languages that weren't designed for security.
I'm all for it. But very few people want to pay for talent that can properly rewrite that legacy C/++ codebase into proper Rust.
>Can we please start making open hardware without Apple/google backdoors and stop pretending our systems are "secure". Few try...and either fail or languish in obscurity. You comment in itself is the proof that open hw cannot compete since you don't know of these open hw platforms and don't use them even tough you seem to advocate their creation here.
>Can we please write all software in Rust... Rust only eliminates memory safety issues of C/C++. There are large number of languages, some decades older than Rust, that provide various aspects of Rust memory safety without imposing the same limits...and some are being used but people always flock to either new and flashy or the most widely used. Besides, Rust still provides ample foot guns and pushes reliance on 3rd party libraries which replaces memory safety issues with supply chain issues. Not to mention the the very poor ergonomics of the language that purposefully shies away from a lot of syntax sugar that makes writing and reading (understanding) code easier.
>Can we please use distributed systems to avoid censorship or holding our private information in the hands of the rich? Even if you managed to persuade a lot of people to use these, some nodes will become popular/trusted and be targeted for censorship and propaganda and that will achieve the same result as the current model. Again, it is the nature of the beast.
What can be done? I don't know, probably nothing...things have to get to the point where most people are compelled to act because the alternative is death or worse, until such time there will just not be enough support for action to matter. Just how people are.
According to Microsoft, about 70% of all security bugs in their products are memory safety issues.
These could be all be eliminated with a language that doesn't allow it in the first place.
https://www.zdnet.com/article/microsoft-70-percent-of-all-se...
Perhaps we just haven't had success yet, and it's not impossible. But such desired outcomes tend to also require everyone to "be the same" (knowledge, skills, capabilities) or "want the same" (desire to spend time and attention on this sort of thing etc.) and that's not how people work.
Sad to say it, but I find it laughable that the intel agencies would suddenly stop if it were illegal (though of course it should be illegal). They operate in secret and anyone in the government who opposes them will commit suicide or suddenly be in possession of child pornography.
As New York Sen. Chuck Schumer once told Rachel Maddow on air, “Let me tell you, you take on the intelligence community, they have six ways from Sunday of getting back at you.” [1]
Those communications were then stored and made available in full via keyword based search interfaces, and those later searches were made without first securing a warrant.
I'm not going to bother reading the tea leaves too closely on this one, but I'd put it at least at even odds the supreme court would say the 4th amendment does apply here.
However the court views a commodity as influencing and being influenced by interstate trade even if that specific gallon of oil never crossed state lines. From a purely economic standpoint it’s a reasonable take. Even Europe’s use of oil influences US oil prices let alone what happens in another state.
It’s both an upside and downside of the judicial system that they take things in context.
The first is that the purpose of giving "interstate commerce" to the federal government was to address the problems incident to interstate commerce, e.g. someone in New York buys something from someone in Florida and there is a dispute, but New York doesn't have jurisdiction over the seller and Florida isn't interested in protecting New York buyers from Florida sellers. The sort of general purpose economic regulations at issue in Wickard weren't intended to be in scope to begin with.
And the second is that as soon as you let go of that limiting principle, you don't have a limiting principle. "Texas has its own power grid" but if Texas has lower or higher power costs then customers might be more or less inclined to locate in Texas rather than some other state and affect demand for power in some other state, so the distinction is lost and there is a practical erasure of any line at all.
Not really the Texas power grid is hardly the only example.
Banning products like say Fireworks is a much broader exception. If there’s no marker to regulate then the feds can’t get involved. This applies to more than just total bans, it’s also why California can have such influence on automobiles and Texas influences textbooks etc.
You may feel there’s not enough things that fall into the exclusion, but that’s not the same thing as the exclusion not existing.
> address the problems incident to interstate commerce
Trademark infringement on trademarks held by an out of state entity breaks the principle you’re talking about without any sale directly crossing state lines.
Same deal if some state decides to subsidize growing broccoli, and that’s ultimately what decided the issue.
This isn't because the existing commerce clause jurisprudence excludes the federal government from regulating these things, it's because the federal legislature passed legislation carving out an exception for California to do that:
https://en.wikipedia.org/wiki/Clean_Air_Act_(United_States)#...
> Trademark infringement on trademarks held by an out of state entity breaks the principle you’re talking about without any sale directly crossing state lines.
Trademarks are already regional. If there is a Joe's Diner in California and another one run by a completely different Joe in Massachusetts, there isn't a problem any more than it would be if there was an independent Joe's Diner in Canada or England. Whereas if there is a Joe's Diner chain headquartered in California which is operating franchises in Massachusetts and they therefore want a federal rather than state-level trademark on the name, that's interstate commerce. Making interstate operations a prerequisite for a federal trademark would not be a real problem.
> Same deal if some state decides to subsidize growing broccoli, and that’s ultimately what decided the issue.
That's not what happened in Wickard. The state wasn't subsidizing anything, the federal government was prohibiting farmers from growing wheat. One of the farmers grew wheat for his own use, in the same state, and was fined for it.
The Court's theory was that this affected interstate commerce, because if he didn't grow it then he might have bought it. Which is a problem if you're trying to do national-level central planning of wheat production, but that's not what the commerce clause is supposed to be for. Everything "affects" interstate commerce. The purpose of the grant is supposed to be to deal with the issues that arise specifically as a result of commercial interactions between people in different states.
I’m talking about the influence beyond it’s borders as mentioned by the Wikipedia article:
“The law also prevents states from setting standards that are more strict than the federal standards, but carves out a special exemption for California… The California standard was adopted by twelve other states,”
Other states without that exception can still have California standards.
> Trademarks are already regional.
Regions that often cross state boundaries. People regularly register federally even if they are only using it within a state. It’s not that someone in the middle of Texas cares about companies in Hawaii, it’s that someone on the border of most states could be 1 mile from a competitor in another state.
> That's not what happened in Wickard.
I didn’t say it did, I said that’s part of why the argument was convincing.
> but that's not what the commerce clause is supposed to be for.
They explicitly used commerce NOT trade. Thus from a pure textual standpoint the scope was absolutely intended to be broader than just trade.
Because the federal law specifically allows that:
https://www.law.cornell.edu/uscode/text/42/7507
> It’s not that someone in the middle of Texas cares about companies in Hawaii, it’s that someone on the border of most states could be 1 mile from a competitor in another state.
But now you're back to having actual interstate commerce, because you have residents of the neighboring state patronizing the business in Texas or vice versa.
> They explicitly used commerce NOT trade. Thus from a pure textual standpoint the scope was absolutely intended to be broader than just trade.
They used the word commerce because it was written in the 18th century. Here's the definition of "commerce" as recently as 1913:
> "The exchange or buying and selling of commodities; esp. the exchange of merchandise, on a large scale, between different places or communities; extended trade or traffic."
https://www.websters1913.com/words/Commerce
If anything, choosing the word "commerce" would imply that they meant to limit the scope of regulation to trade happening on a large scale.
More to the point, this is the actual text:
> To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
Is this meant to give the US Congress the power to regulate entirely local businesses in Spain because Spain is a foreign nation and local business activity in Spain affects commerce with foreign nations?
Trade was in use as “the buying and selling or exchange of commodities” back in 1550. https://www.etymonline.com/word/trade#etymonline_v_16851
Meanwhile by 1680s commerce was taking on a wider definition than just the act of exchange. At the time something was commercial if it was done for profit. Commerce included the steps in preparation for trade rather than just the exchange of goods.
> But now you're back to having actual interstate commerce, because you have residents of the neighboring state patronizing the business in Texas or vice versa.
So lost business is a concern.
No one is arguing that the word trade didn't exist at the time. But there are several other words that also existed at the time, like business, or work, or production, which they also didn't use.
Moreover, the expansive interpretation is inconsistent with the rest of the same article, e.g.:
> The Congress shall have Power > ... > To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; > ... > To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; > ... > To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
Counterfeiting and copyright infringement and high seas piracy are all going to affect interstate commerce, so why would they need to be separately enumerated if the commerce clause was intended to make them redundant?
> Meanwhile by 1680s commerce was taking on a wider definition than just the act of exchange. At the time something was commercial if it was done for profit. Commerce included the steps in preparation for trade rather than just the exchange of goods.
But what is this distinction buying you? Suppose that commerce includes production of goods intended for sale, and then "commerce among the several states" would include production of goods intended for sale between states. That still doesn't get you Wickard, which was production of goods for the direct use of the producer within a single state and continues to manifest the flaw that it omits any discernible limiting principle.
> So lost business is a concern.
Trademarks aren't about lost business, they're a consumer protection rule designed to prevent fraud. They protect the buyer from being misled about the identity of the seller. This is why you nominally can't sell a trademark. (Businesses use a conceit where they sell the "goodwill" associated with the mark and transfer the mark with it, which is a loophole that the courts have long let them get away with so everybody uses it, but in principle it's not allowed, and this is presumably why you don't see many blatant instances like people openly selling trademarks on eBay.)
Federal government wants to regulate what's allowed for parks, public or private? As entertainment, they're a substitute good for copyrighted movies, so if you go to a park, you're not watching a movie. Interstate commerce.
Federal government wants to regulate how you have sex with your spouse? They can regulate a market for traveling prostitution services. Don't use one because you're exclusive with your spouse? Interstate commerce.
These aren't even that far from the actual ruling (actually the park one is probably less extreme), where he couldn't feed his chickens with food he grew. Literally they argued they can regulate how you feed yourself from the fruits of working your land with no trade.
Sometimes it's fair to say SCOTUS deserves no respect and are either extremely disingenuous and corrupt, or profoundly mentally challenged and incompetent. Wickard is such a ruling. It's one of those things that makes you completely lose faith in the legitimacy of our government when you learn about it.
You missed the nuance here. Growing alone didn’t make him a participant, his use made him part of the demand for a commodity.
That [Filburn’s] own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation
Thus if he had been growing wheat as practice or for the artistic value without using it then he would not have been considered as influencing the market.
Wheat is a commodity, works are art are not. So even just the first example you used doesn’t apply. We’ve specifically brought up multiple classes of exceptions on this thread and you added another one.
I suggest you read this before trying to come up with examples. https://en.wikipedia.org/wiki/Commodity
The court actually affirmed 6-3 in 2005 that Congress can regulate home-grown marijuana for personal consumption because of its possible effects on demand within a market that it is federally illegal to participate in. Because some people make illegal trades, even if you are a law-abiding citizen and never would, you apparently affect interstate commerce by following the law and growing your own (in a state where doing so is legal). Absolute trash ruling by a clown court. Directly based on Wickard.
When you look at the whole framework/design of the US government, it's obvious that Wickard was a garbage ruling and that they had at that point completely capitulated to FDR, who we recall had threatened to pack the court if they didn't start giving him carte blanche to do whatever he wanted. FDR wants unlimited authority to do anything? Commerce clause suddenly means Congress can regulate anything which could possibly (even in a counterfactual universe) involve a casual chain where someone interacts with something that interacts with something that eventually at some point in the chain could have crossed state lines.
It’s a continuum, but not particularly subjective. The degree to which something is an equivalent good depends on how people treat the item in question.
They may both be religious books but I doubt you’d find many people ambivalent if they are buying a Bible or Quran. They evaluate a used car based on mileage, but people are far more picky about content.
> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…
You have a right as to your data, but not other people’s data about you. E.g. you have no right as to a pharmacy’s business records about you. (That’s their data, not your data.)
To my knowledge, no court has ever distinguished between say image and the file metadata on someone’s computer. But the way “metadata” becomes relevant is often because someone else owns “metadata” about your files, such as server logs.
If you believe the reason is corruption, what personal incentive would the courts have to rule this way? Judges can easily be the victim of government overreach as well.
So regardless of how courts rule on most issues, one could almost always argue they're taking the side of wealth and power and against the side of wealth and power.
And data is inanimate in the dictionary definition sense of it not being alive. That other things can move it doesn't make it animate.
Judges are appointed (or voted in) by the very people you think they "impose restriction" on. Any ruling against the ruling class in our favor is nothing more than a happy accident.
> Riley has been widely praised as “a sweeping victory for privacy rights”[5] with legal scholars describing the decision as "the privacy gift that keeps on giving."
Since then the Court has picked up another privacy hawk (Justice Gorsuch), and another Justice (Barrett) that's also pretty strong on privacy: https://www.protectprivacynow.org/news/how-will-a-justice-am....
what they are deciding now is how to dress the mechanics of it.
I do agree that it currently like the court is broadly pro-privacy but I also think it entirely depends on the case and its specifics.
You can point to Roe and Chevron, but those didn’t come out of nowhere. The first, conservatives vowed to overturn 50 years ago—and its expansive notion of judicially declaring rights is not embraced even among liberals on the court today. The second was a judge created interpretive doctrine anyway, and proved unworkable over time. But it also didn’t come out of nowhere. Gorsuch has been writing about it since before I was in law school, and that was 15 years ago.
Since the current court eliminated the right to privacy in the US, I doubt they’ll spontaneously decide to restore it.
> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…
If Roe was about “privacy”—i.e. laws against abortion are a “search” of your “person,” then by the same logic—laws against drowning your infant in the bathtub constitute a “search” of your “house.”
Dobbs didn’t get rid of the right to privacy. It’s still there in the fourth amendment. It simply dropped the pretense that abortion was about privacy (which Casey had already done).
Correct on your second point - Dobbs didn't take any rights away, it merely delegated to the States, where historically, such rights such rights are granted.
From God, who is great, especially at dodging process servers.
When you build a legal system on bullshit, you can't be too surprised when irreparable cracks start to show after a couple hundred years.
Then didn’t Dobbs basically work by undoing the idea that you can locate abortion rights in the due process clause, rather than somehow wrecking the constitutional amendment itself?
The right to privacy was curved out of the 9th Amendment in the district court decision (not the 4th or the 14th).
The Supreme court upheld the district court decision and went further by adding the protection of the 14th amendment as to how and when this privacy right can be abridged by the states (not without due process of law).
States must show a compelling interest to intervene in women's decision to abort, and this compelling interest ripens only after the first trimester of pregnancy.
That latter question has nothing to do with privacy or the constitution. It’s a general moral judgment based on underlying biological facts. In that respect, Roe simply is an articulation of Harry Blackmun’s Methodist religious beliefs. The United Methodist Church came out strongly in favor of abortion legality in the 1960s. But there’s nothing in the constitution supporting the determination Roe reached and Roe didn’t even pretend there was.
That court you're so impressed with also:
..ruled that silence does not indicate someone is exercising their right to remain silent (!) in Berghuis v. Thompkins. I mean really, you can't make this shit up.
...made Miranda rights almost worthless in Vega v. Tekoh, where a cop cornered a nurse in a storage room, threatened the nurse by putting his hand on his gun, threatened him and his family with deportation, etc...and then his statements were then used against them in court. The ruling removed the right to sue for having one's Miranda rights violated, only that they can suppress the statements in court.
...ruled that imprisoning someone did not count as "custodial". Again, you cannot make this shit up.
...threw a hissy fit when people dared to start protesting outside their homes.
You might dislike it, but legally, these are equivalent, with the requirement of a finger being less onerous. Biometrics are public information, like it or now. It's a well-reasoned decision.
It makes a lot of sense to have protections against the police searching phones, homes, businesses, etc. But assuming that those protections aren't at play then it is entirely reasonable that a policeperson can force someone to put their thumb somewhere. The police already have the power to manhandle and imprison people, forced thumblocation is nothing compared to that. What do you want the Supreme court to do here, officially rule that police can coerce not just entire bodies at once, but also thumbs separately and individually? That seems like an unnecessary call for them to make.
Of course they can. Why wouldn’t they be able to?
Relevant, even though he's not a "framer":
"Using Metadata to find Paul Revere" - https://kieranhealy.org/blog/archives/2013/06/09/using-metad...
> But I say again, if a mere scribe such as I—one who knows nearly nothing—can use the very simplest of these methods to pick the name of a traitor like Paul Revere from those of two hundred and fifty four other men, using nothing but a list of memberships and a portable calculating engine, then just think what weapons we might wield in the defense of liberty one or two centuries from now.
https://www.reuters.com/article/world/exclusive-nsa-infiltra...