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The important lesson to draw from the contorted justification for warrantless wiretaps is that this happens all the time. Some have been suckered into thinking

by jmyeet 4y ago

The important lesson to draw from the contorted justification for warrantless wiretaps is that this happens all the time. Some have been suckered into thinking something like an "originalist" or "textualist" interpretation of the US constitution is somehow a real thing. It's not. In fact, it's a fairly modern invention from the Nixon era created with the expressed purpose of rationalizing a socially conservative agenda. All of this stuf is, essentially, completely made up. The fact that we have civil asset forfeiture (ie legalized theft) should tell you everything. It quite literally says "unreasonable search and seizures". How is this not a 4th Amendment violation? I'll tell you how: the goal was to OK civil asset forfeiture so the meaning of words were contorted until a sufficient justification was found. There is no textual interpretation going on anywhere. None. We see this with the legal justification for NSA warrantless wiretaps too. Metadata isn't a "search". Somehow the government can record who you spoke to, when and for how long but not the content and that's still not a "search" (in the 4th Amendment sense). Why? Because the whole thing is completely made up.

AJMaxwell 4y ago
To be fair, the US government has been able to monitor who communicates with whom and how many pages their conversation is through the postal service since the beginning. Today it's much easier to track those physical with technology and automation.
ch4s3 4y ago
> Some have been suckered into thinking something like an "originalist" or "textualist" interpretation of the US constitution is somehow a real thing. It's not. In fact, it's a fairly modern invention from the Nixon era created with the expressed purpose of rationalizing a socially conservative agenda. It's not less real or moderns than the "Living Constitution" Theory which dates to the progressive era and was first tested in a case that overturned the government's first attempt at an income tax. Moreover a proper originalist interpretation of the wiretaps and indeed many technological searches is that they violate the 4th amendment as Scalia found in a GPS related case and Gorsuch dissented in several more recent cases. Scalia was kind of all over the map on police powers and Thomas just makes shit up so I think there's plenty of room to criticism them.
salawat 4y ago
>All of this stuf is, essentially, completely made up. The fact that we have civil asset forfeiture (ie legalized theft) should tell you everything. It quite literally says "unreasonable search and seizures". How is this not a 4th Amendment violation? As long as we're willing to pretend the 2nd Amendment doesn't read exactly as it does, what hope do you think there is for the 4th?
- xboxnolifes 4y ago
  Which way is the 2nd not being read exactly as it does? I'm not familiar.
  - deleted 4y ago
    [deleted]
  - boomboomsubban 4y ago
    On both sides of the issues, the "well regulated militia" part is completely ignored, and a ban on various weapons ranging from missiles to ballistic knives can be considered an infringement of the right to keep and bear arms. The entire Bill of Rights is far more vague then people make it out to be. Hell, the Ninth Amendment is basically "people also have other unmentioned rights the government can't deny."
  - tshaddox 4y ago
    The debate is generally over whether the part of the sentence before the comma is supposed to mean anything or whether you’re supposed to ignore it and only read the part after the comma.
twirlock 4y ago
mpyne 4y ago
> It's not. In fact, it's a fairly modern invention from the Nixon era created with the expressed purpose of rationalizing a socially conservative agenda. The outcome of the Nixon era was to rein in the NSA, not expand it more. Read about the Church Committee. Moreover, the U.S. government has copied telegrams crossing the U.S.'s international borders for nearly as long as overseas telegraphy has been a thing. The NSA themselves are happy to mention that the first U.S. civilian cipher-cracking agency was setup in New York City for easy access to major telegraphy operations, see https://www.nsa.gov/History/Cryptologic-History/Historical-Events/Article-View/Article/2740622/the-black-chamber/ https://www.nsa.gov/History/Cryptologic-History/Historical-E... > It quite literally says "unreasonable search and seizures". How is this not a 4th Amendment violation? 'Seizing' is a legal term, where your property is taken and held by the government, as with some of the various oligarchs' yachts seized in the wake of Russia's attack on Ukraine. That's not to say that a wiretap would have been considered OK by the writers of the Constitution, I just don't think they thought of the possibility of intercepting communications without seizing them. Even back then there would be a concept of public records about people (think of property deeds, court records, baptismal registries, and so on). Many of those records would have been accessible to the government as a matter of course (e.g. registries maintained by a local church). So there's precedent for 'metadata' about people to be open to government without a warrant (especially if they are open to members of the public anyways). And frankly it wouldn't be until 1967 that any substantive restriction was finally put on government use of electronic communications. It wasn't even illegal for individuals to conduct wiretaps on other individuals until 1934!
- kelnos 4y ago
  > 'Seizing' is a legal term, where your property is taken and held by the government Doesn't that perfectly describe civil asset forfeiture? (What the parent was talking about when referring to "seizure", not the wiretap stuff in this case.) > So there's precedent for 'metadata' about people to be open to government without a warrant (especially if they are open to members of the public anyways) Phone/messaging records are not open to members of the public, though. > * And frankly it wouldn't be until 1967 that any substantive restriction was finally put on government use of electronic communications.* Is that even necessary, though? I mean, we don't need to have a law on the books that says the US President must be 35 years or older; that's in the Constitution. Just like "no unreasonable searches or seizures". Certainly law can help codify and clarify specifically what a search consists of. But I think it's pretty uncontroversial to argue that much of what the US government does vacuuming up electronic data should constitute a "search".

by jmyeet 4y ago

AJMaxwell 4y ago

To be fair, the US government has been able to monitor who communicates with whom and how many pages their conversation is through the postal service since the beginning. Today it's much easier to track those physical with technology and automation.

ch4s3 4y ago

> Some have been suckered into thinking something like an "originalist" or "textualist" interpretation of the US constitution is somehow a real thing. It's not. In fact, it's a fairly modern invention from the Nixon era created with the expressed purpose of rationalizing a socially conservative agenda. It's not less real or moderns than the "Living Constitution" Theory which dates to the progressive era and was first tested in a case that overturned the government's first attempt at an income tax. Moreover a proper originalist interpretation of the wiretaps and indeed many technological searches is that they violate the 4th amendment as Scalia found in a GPS related case and Gorsuch dissented in several more recent cases. Scalia was kind of all over the map on police powers and Thomas just makes shit up so I think there's plenty of room to criticism them.

salawat 4y ago

>All of this stuf is, essentially, completely made up. The fact that we have civil asset forfeiture (ie legalized theft) should tell you everything. It quite literally says "unreasonable search and seizures". How is this not a 4th Amendment violation? As long as we're willing to pretend the 2nd Amendment doesn't read exactly as it does, what hope do you think there is for the 4th?

xboxnolifes 4y ago
Which way is the 2nd not being read exactly as it does? I'm not familiar.
- deleted 4y ago
  [deleted]
- boomboomsubban 4y ago
  On both sides of the issues, the "well regulated militia" part is completely ignored, and a ban on various weapons ranging from missiles to ballistic knives can be considered an infringement of the right to keep and bear arms. The entire Bill of Rights is far more vague then people make it out to be. Hell, the Ninth Amendment is basically "people also have other unmentioned rights the government can't deny."
- tshaddox 4y ago
  The debate is generally over whether the part of the sentence before the comma is supposed to mean anything or whether you’re supposed to ignore it and only read the part after the comma.

twirlock 4y ago

mpyne 4y ago

> It's not. In fact, it's a fairly modern invention from the Nixon era created with the expressed purpose of rationalizing a socially conservative agenda. The outcome of the Nixon era was to rein in the NSA, not expand it more. Read about the Church Committee. Moreover, the U.S. government has copied telegrams crossing the U.S.'s international borders for nearly as long as overseas telegraphy has been a thing. The NSA themselves are happy to mention that the first U.S. civilian cipher-cracking agency was setup in New York City for easy access to major telegraphy operations, see https://www.nsa.gov/History/Cryptologic-History/Historical-Events/Article-View/Article/2740622/the-black-chamber/ https://www.nsa.gov/History/Cryptologic-History/Historical-E... > It quite literally says "unreasonable search and seizures". How is this not a 4th Amendment violation? 'Seizing' is a legal term, where your property is taken and held by the government, as with some of the various oligarchs' yachts seized in the wake of Russia's attack on Ukraine. That's not to say that a wiretap would have been considered OK by the writers of the Constitution, I just don't think they thought of the possibility of intercepting communications without seizing them. Even back then there would be a concept of public records about people (think of property deeds, court records, baptismal registries, and so on). Many of those records would have been accessible to the government as a matter of course (e.g. registries maintained by a local church). So there's precedent for 'metadata' about people to be open to government without a warrant (especially if they are open to members of the public anyways). And frankly it wouldn't be until 1967 that any substantive restriction was finally put on government use of electronic communications. It wasn't even illegal for individuals to conduct wiretaps on other individuals until 1934!

kelnos 4y ago
> 'Seizing' is a legal term, where your property is taken and held by the government Doesn't that perfectly describe civil asset forfeiture? (What the parent was talking about when referring to "seizure", not the wiretap stuff in this case.) > So there's precedent for 'metadata' about people to be open to government without a warrant (especially if they are open to members of the public anyways) Phone/messaging records are not open to members of the public, though. > * And frankly it wouldn't be until 1967 that any substantive restriction was finally put on government use of electronic communications.* Is that even necessary, though? I mean, we don't need to have a law on the books that says the US President must be 35 years or older; that's in the Constitution. Just like "no unreasonable searches or seizures". Certainly law can help codify and clarify specifically what a search consists of. But I think it's pretty uncontroversial to argue that much of what the US government does vacuuming up electronic data should constitute a "search".