4 ms·

Yes. The whole drug war is antithetical to the spirit and original intent of the 4th and I firmly believe the court decided these cases incorrectly. Imagine ext

by ch4s3 4y ago

Yes. The whole drug war is antithetical to the spirit and original intent of the 4th and I firmly believe the court decided these cases incorrectly. Imagine extending this ridiculous helicopter analogy to satellites of increasing capability. Where would there ever be any expectation of privacy? Must we all cling together in lead lined boxes underground?

xahrepap 4y ago
Or wifi that can see through walls. Etc etc. It’s to the point where we need a new amendment to bolster the 4th in the modern era. Not saying we SHOULD need one. Because I agree the spirit (and honestly the letter) of the 4th covers us. But clearly bad actors are winning the fight right now.
- deleted 4y ago
  [deleted]
- ch4s3 4y ago
  This is what always killed me about the "liberal" judges, so many of them are TERRIBLE on the 4th.
  - matthewdgreen 4y ago
    This should be one of the places where conservative "originalist" judicial philosophy shines: after all, that entire philosophy is designed to constrain government power based on what was reasonable and expected in the 1700s. You'd imagine that one could use this approach to protect citizens from government adoption of modern surveillance technology (which is capable of "searches" that track a user's electronic records, among other things.) Surprisingly, that's not at all what we've seen. For example in Carpenter vs. United States, the Supreme Court was asked whether tracking someone via cell-transaction records required a warrant under the 4th amendment. Chief Justice Roberts and the Court's liberal justices said "yes, it is a violation because citizens should have a reasonable expectation of privacy in their movements." Meanwhile the most prominent originalists (Thomas, Gorsuch as well as Alito) filed dissenting opinions lamenting the decision, saying that the 4th amendment doesn't provide any protection for these records. Anyway ordinarily I wouldn't respond to a political rant, but I do think it's important for HN readers to know what the most important judges in the country are actually saying on this point.
    - ch4s3 4y ago
      I totally agree. The originalists haven’t made a very strong intellectual showing on the 4th.
    - krapp 4y ago
      The originalist interpretation of Thomas, Gorsuch and Alito seems correct to me. The 4th Amendment refers to "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Cellphone records do not belong to the person who owns the cellphone generating that data, nor are they papers or effects in the way the Amendment was meant to refer, nor an intrusion onto a person's private property, therefore the Amendment shouldn't apply. Also, as of now SCOTUS has decided a right to privacy doesn't exist within the Constitution. They were willing to get rid of that in order to overturn Roe V. Wade. The problem with wanting an originalist interpretation of the Constitution is that the Constitution doesn't really say what most people think it does.
      - ch4s3 4y ago
        Cell records seem like “papers” to me. Just because this case isn’t specifically outlined in the text doesn’t mean that power is automatically granted to the government without a warrant.
        krapp 4y ago
        >Cell records seem like “papers” to me. But would they seem like papers to someone in the 1700s? "Papers" in that context are physical documents, parchment and ink. That's the problem with Constitutional originalism - it boils down to interpreting the mind of an imaginary ghost, which fundamentally leads to justifying confirmation bias by proxy.
        ch4s3 4y ago
        They had documents held by third parties that pertained to your commercial activities. Looking at them required a warrant.
modriano 4y ago
I must confess, I wasn't really presenting a hypothetical, even if I initially presented it that way. I was just presenting the facts of the case Florida v Riley [0], which the Supreme Court considered and then decided individuals don't have a reasonable expectation of privacy in locations that can be viewed by a helicopter just outside the bounds of your property. So unless the court completely changes direction on decades of consist (anti-privacy) 4A interpretation, the SC will absolutely rule that it's fine for a geosynchronous satellite to just watch any particular target 24/7, when it becomes economically possible for an investigation to employ such tools. [0] https://www.oyez.org/cases/1988/87-764 https://www.oyez.org/cases/1988/87-764
- ch4s3 4y ago
  I got your intent and I've read a lot about the Riley case. The courts have completely destroyed the 4th amendment, its terrible.
  - newZWhoDis 4y ago
    Yep. Most of the federal government is unconstitutional and the courts allowed it.
  - Amezarak 4y ago
    Technology destroyed the Fourth Amendment. If the government couldn't fly the helicopter themselves, they would just buy the data, as they already do your cellphone location data, car tag scan data, credit card purchase histories, etc. It's going to be clearly silly for most people to say that multibillion dollar corporations are allowed to conduct unlimited surveillance on you, but the government can't. The 4A was encoding a legal right to the societal expectation of privacy. We've spent the last 30 years blithely destroying that social expectation via tech. Of course no one much is up in arms in it now - we've trained it out. Big Data and the Fourth Amendment are antitheses. Even if you were to somehow rile up enough people to force some sort of legislation against stuff like this, it's going to happen anyway, illegally, and they'll find a way to get away with it. Consider the myriad abuses of the CIA and NSA. What happened when the CIA spied on Congress illegally as Congress investigated their other illegal actions, and then got caught, then lied about what they were doing? Absolutely nothing, and the guy in charge is now considered a hero by a whole political faction and is a frequent media commentator expounding his opinions as a Trustworthy Expert. In a world where you're dealing with human beings, you can't have giant repositories of extremely useful data in centralized locations and think that a "don't look at this" sign is going to do you any good. You have to not have giant centralized repositories of data people care about. The Fourth Amendment could only effectively exist in a world where privacy was valued and invading it meant breaking into someone’s home, or his lawyer’s office, or paying people to follow him around all day.
JumpCrisscross 4y ago
> Imagine extending this ridiculous helicopter analogy to satellites of increasing capability An originalist analogy would be the government spotting something with their naked eye from a boat that isn’t visible from land. I don’t think that would be unconstitutional. If someone in a helicopter is using their naked eye to look at your one property, that seems to be in a different category from e.g. thermal imaging everyone from space.
- ch4s3 4y ago
  This isn't a very good argument. A naked eye assessment from water is no different than from land. You won't see over walls or between land features, you also can't go within 400 ft of any arbitrary point in a piece of property from the water. Furthermore the 400 ft rule is totally arbitrary, and enforcing it relies entirely on the word of the police who are 100% incentivized to lie about both altitude and use of "the naked eye". The whole think stinks of authoritarianism.
  - JumpCrisscross 4y ago
    > the 400 ft rule is totally arbitrary, and enforcing it relies entirely on the word of the police I mean, any distance is going to be arbitrary. And “people might lie” is a bad reason to reject a rule. (It’s a good reason to raise the burden of evidence.)
    - ch4s3 4y ago
      The decision set no burden for evidence, and the dissents specifically pointed out that no reasonable civilian pilot would be flying so low. The court invented this shit whole cloth to justify the drug war fashion of the day, it’s horrifying overreach. Imagine saying out loud with a straight face that it’s not a search because you’re in the sky.
      - JumpCrisscross 4y ago
        > decision set no burden for evidence Defence didn’t allege the cops lied. This case wasn’t about lying cops. > no reasonable civilian pilot would be flying so low This argument has merit. That said, civilians don’t slowly patrol neighbourhoods either. So I’m not sure where the threshold is for what cops can do on patrol.
mcbits 4y ago
I suspect the 4th amendment would have been worded somewhat differently if the royal tax collectors in Boston had been clever enough to train tea-sniffing dogs to search cargo for tea smuggling without physically searching inside.

by ch4s3 4y ago

xahrepap 4y ago

Or wifi that can see through walls. Etc etc. It’s to the point where we need a new amendment to bolster the 4th in the modern era. Not saying we SHOULD need one. Because I agree the spirit (and honestly the letter) of the 4th covers us. But clearly bad actors are winning the fight right now.

deleted 4y ago
[deleted]
ch4s3 4y ago
This is what always killed me about the "liberal" judges, so many of them are TERRIBLE on the 4th.
- matthewdgreen 4y ago
  This should be one of the places where conservative "originalist" judicial philosophy shines: after all, that entire philosophy is designed to constrain government power based on what was reasonable and expected in the 1700s. You'd imagine that one could use this approach to protect citizens from government adoption of modern surveillance technology (which is capable of "searches" that track a user's electronic records, among other things.) Surprisingly, that's not at all what we've seen. For example in Carpenter vs. United States, the Supreme Court was asked whether tracking someone via cell-transaction records required a warrant under the 4th amendment. Chief Justice Roberts and the Court's liberal justices said "yes, it is a violation because citizens should have a reasonable expectation of privacy in their movements." Meanwhile the most prominent originalists (Thomas, Gorsuch as well as Alito) filed dissenting opinions lamenting the decision, saying that the 4th amendment doesn't provide any protection for these records. Anyway ordinarily I wouldn't respond to a political rant, but I do think it's important for HN readers to know what the most important judges in the country are actually saying on this point.
  - ch4s3 4y ago
    I totally agree. The originalists haven’t made a very strong intellectual showing on the 4th.
  - krapp 4y ago
    The originalist interpretation of Thomas, Gorsuch and Alito seems correct to me. The 4th Amendment refers to "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Cellphone records do not belong to the person who owns the cellphone generating that data, nor are they papers or effects in the way the Amendment was meant to refer, nor an intrusion onto a person's private property, therefore the Amendment shouldn't apply. Also, as of now SCOTUS has decided a right to privacy doesn't exist within the Constitution. They were willing to get rid of that in order to overturn Roe V. Wade. The problem with wanting an originalist interpretation of the Constitution is that the Constitution doesn't really say what most people think it does.
    - ch4s3 4y ago
      Cell records seem like “papers” to me. Just because this case isn’t specifically outlined in the text doesn’t mean that power is automatically granted to the government without a warrant.
      - krapp 4y ago
        >Cell records seem like “papers” to me. But would they seem like papers to someone in the 1700s? "Papers" in that context are physical documents, parchment and ink. That's the problem with Constitutional originalism - it boils down to interpreting the mind of an imaginary ghost, which fundamentally leads to justifying confirmation bias by proxy.
        ch4s3 4y ago
        They had documents held by third parties that pertained to your commercial activities. Looking at them required a warrant.

modriano 4y ago

I must confess, I wasn't really presenting a hypothetical, even if I initially presented it that way. I was just presenting the facts of the case Florida v Riley [0], which the Supreme Court considered and then decided individuals don't have a reasonable expectation of privacy in locations that can be viewed by a helicopter just outside the bounds of your property. So unless the court completely changes direction on decades of consist (anti-privacy) 4A interpretation, the SC will absolutely rule that it's fine for a geosynchronous satellite to just watch any particular target 24/7, when it becomes economically possible for an investigation to employ such tools. [0] https://www.oyez.org/cases/1988/87-764 https://www.oyez.org/cases/1988/87-764

ch4s3 4y ago
I got your intent and I've read a lot about the Riley case. The courts have completely destroyed the 4th amendment, its terrible.
- newZWhoDis 4y ago
  Yep. Most of the federal government is unconstitutional and the courts allowed it.
- Amezarak 4y ago
  Technology destroyed the Fourth Amendment. If the government couldn't fly the helicopter themselves, they would just buy the data, as they already do your cellphone location data, car tag scan data, credit card purchase histories, etc. It's going to be clearly silly for most people to say that multibillion dollar corporations are allowed to conduct unlimited surveillance on you, but the government can't. The 4A was encoding a legal right to the societal expectation of privacy. We've spent the last 30 years blithely destroying that social expectation via tech. Of course no one much is up in arms in it now - we've trained it out. Big Data and the Fourth Amendment are antitheses. Even if you were to somehow rile up enough people to force some sort of legislation against stuff like this, it's going to happen anyway, illegally, and they'll find a way to get away with it. Consider the myriad abuses of the CIA and NSA. What happened when the CIA spied on Congress illegally as Congress investigated their other illegal actions, and then got caught, then lied about what they were doing? Absolutely nothing, and the guy in charge is now considered a hero by a whole political faction and is a frequent media commentator expounding his opinions as a Trustworthy Expert. In a world where you're dealing with human beings, you can't have giant repositories of extremely useful data in centralized locations and think that a "don't look at this" sign is going to do you any good. You have to not have giant centralized repositories of data people care about. The Fourth Amendment could only effectively exist in a world where privacy was valued and invading it meant breaking into someone’s home, or his lawyer’s office, or paying people to follow him around all day.

JumpCrisscross 4y ago

> Imagine extending this ridiculous helicopter analogy to satellites of increasing capability An originalist analogy would be the government spotting something with their naked eye from a boat that isn’t visible from land. I don’t think that would be unconstitutional. If someone in a helicopter is using their naked eye to look at your one property, that seems to be in a different category from e.g. thermal imaging everyone from space.

ch4s3 4y ago
This isn't a very good argument. A naked eye assessment from water is no different than from land. You won't see over walls or between land features, you also can't go within 400 ft of any arbitrary point in a piece of property from the water. Furthermore the 400 ft rule is totally arbitrary, and enforcing it relies entirely on the word of the police who are 100% incentivized to lie about both altitude and use of "the naked eye". The whole think stinks of authoritarianism.
- JumpCrisscross 4y ago
  > the 400 ft rule is totally arbitrary, and enforcing it relies entirely on the word of the police I mean, any distance is going to be arbitrary. And “people might lie” is a bad reason to reject a rule. (It’s a good reason to raise the burden of evidence.)
  - ch4s3 4y ago
    The decision set no burden for evidence, and the dissents specifically pointed out that no reasonable civilian pilot would be flying so low. The court invented this shit whole cloth to justify the drug war fashion of the day, it’s horrifying overreach. Imagine saying out loud with a straight face that it’s not a search because you’re in the sky.
    - JumpCrisscross 4y ago
      > decision set no burden for evidence Defence didn’t allege the cops lied. This case wasn’t about lying cops. > no reasonable civilian pilot would be flying so low This argument has merit. That said, civilians don’t slowly patrol neighbourhoods either. So I’m not sure where the threshold is for what cops can do on patrol.

mcbits 4y ago

I suspect the 4th amendment would have been worded somewhat differently if the royal tax collectors in Boston had been clever enough to train tea-sniffing dogs to search cargo for tea smuggling without physically searching inside.