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There needs to be further refinement as to what actually constitutes "watching", e.g. with respect to duration, frequency, information monitored, etc. US v. Jo

by rmxt 10y ago

There needs to be further refinement as to what actually constitutes "watching", e.g. with respect to duration, frequency, information monitored, etc. US v. Jones held that installing a GPS device on a car constituted a trespass against one's "personal effects". I think the similar argument here would be that a near constant observation of someone, even while in public, would amount to the same sort of search, even though one has a very low expectation of privacy while in public.

rayiner 10y ago
Jones was based on the classic idea that when the government does what would be a trespass if a private person did it, then a warrant is required. Observing someone in public is not a trespass, no matter how much you do it.
- rmxt 10y ago
  You are correct to say that you can't commit a trespass by observing someone in public. However, trespassing is not an exclusive test as to whether a search is permissible (though it was the applicable rubric for Jones). The Katz test still must be applied, above and beyond the trespassory test. The concurrences in the Jones opinion state "at the very least, “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” Swap "GPS monitoring" for infrared, EMF, video, audio tracking, whatever those planes are doing, and I think we are at the same level of "impinge(ment) on expectations of privacy." Is it your opinion that Alito and Sotomayor are barking up the wrong tree? Is this sort of extensive (i.e. multi-modal (visual, EMF, etc.)), and evidently prolonged, monitoring not an impingement on typical expectation of privacy? Sure, this isn't a trespass, but if a private person was doing this to you, wouldn't you want to call the cops? (Oh, wait...)
  - rayiner 10y ago
    My point is that Jones doesn't really help you: the majority opinion focused on the trespass theory, and did not rely on the consequences of longer-term GPS monitoring. In my opinion, the whole "expectation of privacy" thing is reading words into the 4th amendment that aren't there. If you look at the phrasing of the text, which focuses on "searches" and "seizures" of "persons, houses, papers, and effects" it's clear that the 4th amendment prohibits the government from doing what would be a common law trespass (to the person, to real property, or to chattels). It's based on property rights, not privacy.
- sixothree 10y ago
  So it's completely legal to follow someone every place they go? I thought that was very illegal.
  - nommm-nommm 10y ago
    Harassing someone is generally illegal, which can include following them around, usually to intimidate them. If you are following someone in the matter the police would they won't know they are being followed, which is part of what private investigators do. Just don't harass them. If they catch you and tell you to stop and you don't - then you are veering into harassment territory.
- Zigurd 10y ago
  > Observing someone in public is not a trespass, no matter how much you do it. That's because it would be stalking.

by rmxt 10y ago

rayiner 10y ago

Jones was based on the classic idea that when the government does what would be a trespass if a private person did it, then a warrant is required. Observing someone in public is not a trespass, no matter how much you do it.

rmxt 10y ago
You are correct to say that you can't commit a trespass by observing someone in public. However, trespassing is not an exclusive test as to whether a search is permissible (though it was the applicable rubric for Jones). The Katz test still must be applied, above and beyond the trespassory test. The concurrences in the Jones opinion state "at the very least, “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” Swap "GPS monitoring" for infrared, EMF, video, audio tracking, whatever those planes are doing, and I think we are at the same level of "impinge(ment) on expectations of privacy." Is it your opinion that Alito and Sotomayor are barking up the wrong tree? Is this sort of extensive (i.e. multi-modal (visual, EMF, etc.)), and evidently prolonged, monitoring not an impingement on typical expectation of privacy? Sure, this isn't a trespass, but if a private person was doing this to you, wouldn't you want to call the cops? (Oh, wait...)
- rayiner 10y ago
  My point is that Jones doesn't really help you: the majority opinion focused on the trespass theory, and did not rely on the consequences of longer-term GPS monitoring. In my opinion, the whole "expectation of privacy" thing is reading words into the 4th amendment that aren't there. If you look at the phrasing of the text, which focuses on "searches" and "seizures" of "persons, houses, papers, and effects" it's clear that the 4th amendment prohibits the government from doing what would be a common law trespass (to the person, to real property, or to chattels). It's based on property rights, not privacy.
sixothree 10y ago
So it's completely legal to follow someone every place they go? I thought that was very illegal.
- nommm-nommm 10y ago
  Harassing someone is generally illegal, which can include following them around, usually to intimidate them. If you are following someone in the matter the police would they won't know they are being followed, which is part of what private investigators do. Just don't harass them. If they catch you and tell you to stop and you don't - then you are veering into harassment territory.
Zigurd 10y ago
> Observing someone in public is not a trespass, no matter how much you do it. That's because it would be stalking.