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Notable excerpts: 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

by gbacon 8y ago

Notable excerpts: 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#page=99 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#page=111 https://www.supremecourt.gov/opinions/17pdf/16-402_h315.pdf#...

mtgx 8y ago
Not a fan of Gorsuch, but I'm positively surprised at that comment, as this has been my thinking since the beginning on this issue, too. 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.
- TimTheTinker 8y ago
  > Not a fan of Gorsuch Why not? Unless I’ve missed something important, his legal interpretation and application so far seem to be fair, balanced, straightforward, and non-partisan.
  - bmelton 8y ago
    He got a pretty good smearing done on his character by the media during his confirmation hearings. That, plus the fact that his name will always be associated with Trump, is probably enough for most people. 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.
    - RankingMember 8y ago
      I'm curious- what makes him predisposed to ruling against Trump?
      - bmelton 8y ago
        The TLDR answer is that he doesn't believe that the constitution gives the federal government as much authority as they exercise. 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.

by gbacon 8y ago

mtgx 8y ago

Not a fan of Gorsuch, but I'm positively surprised at that comment, as this has been my thinking since the beginning on this issue, too. 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.

TimTheTinker 8y ago
> Not a fan of Gorsuch Why not? Unless I’ve missed something important, his legal interpretation and application so far seem to be fair, balanced, straightforward, and non-partisan.
- bmelton 8y ago
  He got a pretty good smearing done on his character by the media during his confirmation hearings. That, plus the fact that his name will always be associated with Trump, is probably enough for most people. 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.
  - RankingMember 8y ago
    I'm curious- what makes him predisposed to ruling against Trump?
    - bmelton 8y ago
      The TLDR answer is that he doesn't believe that the constitution gives the federal government as much authority as they exercise. 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.