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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 o

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
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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.
        j33zusjuice 4y ago
        Exactly. This isn’t new, this is just further abstracted. When we consider what these things are analogous to, then, yes, they should require a warrant. Should the government be allowed to intercept your mail, make an exact replica, and send the original to the intended recipient? Obviously not. The same, therefore, applies to packets. Should LE be allowed to look at all the recipients of your snail mail without a warrant? Absolutely not. They, therefore, should not be allowed to read your call logs. It’s basically the same.
  - deleted 4y ago
    [deleted]
  - wcunning 4y ago
    Gorsuch's dissent read to me as: refile this case with the following complete legal theory that would provide 10x as much protection as the majority's decision. He clearly didn't like the use of the cellphone records, just didn't want to rule the way the majority ruled with so many outs for the cops given how little effort it takes to get a warrant these days.
  - notfromhere 4y ago
    Originalism is a lot like Biblical interpretation. It says exactly what you want it to say if you twist it in just the right way. And magically, originalism always lines up with whatever the existing Conservative party line happens to be. If you really want to get technical, the Supreme Court has no business in judicial review, as that is not explicitly stated in the Constitution. Marbury v Madison is more tradition than anything.

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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.
        j33zusjuice 4y ago
        Exactly. This isn’t new, this is just further abstracted. When we consider what these things are analogous to, then, yes, they should require a warrant. Should the government be allowed to intercept your mail, make an exact replica, and send the original to the intended recipient? Obviously not. The same, therefore, applies to packets. Should LE be allowed to look at all the recipients of your snail mail without a warrant? Absolutely not. They, therefore, should not be allowed to read your call logs. It’s basically the same.
- deleted 4y ago
  [deleted]
- wcunning 4y ago
  Gorsuch's dissent read to me as: refile this case with the following complete legal theory that would provide 10x as much protection as the majority's decision. He clearly didn't like the use of the cellphone records, just didn't want to rule the way the majority ruled with so many outs for the cops given how little effort it takes to get a warrant these days.
- notfromhere 4y ago
  Originalism is a lot like Biblical interpretation. It says exactly what you want it to say if you twist it in just the right way. And magically, originalism always lines up with whatever the existing Conservative party line happens to be. If you really want to get technical, the Supreme Court has no business in judicial review, as that is not explicitly stated in the Constitution. Marbury v Madison is more tradition than anything.