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So, a bit of a layman's guide to Constitutional Law: The Constitution specifies that there are rights that are not enumerated in the Constitution (or the Bill

by Nrsolis 15y ago

So, a bit of a layman's guide to Constitutional Law: The Constitution specifies that there are rights that are not enumerated in the Constitution (or the Bill of Rights) that are yours nonetheless. The SCOTUS has found that this includes "the right to privacy." Here is the first link from a 2 second Google search that might prove enlightening on the general scope fo the issues involved: http://law2.umkc.edu/faculty/projects/ftrials/conlaw/rightofprivacy.html http://law2.umkc.edu/faculty/projects/ftrials/conlaw/rightof... Here is another: http://en.wikipedia.org/wiki/Griswold_v._Connecticut http://en.wikipedia.org/wiki/Griswold_v._Connecticut Generally speaking, if the SCOTUS says it's the law, you can consider their decision to be nearly equivalent to a general incorporation into the Consitution since all courts below it are essentially BOUND to follow that decision if it's relevant. If SCOTUS says it's illegal, it's illegal. And I would disagree with your characterization of what "key Supreme Court majority opinions" say. The reasonableness test is one that gets bandied about quite a bit. You're going to have to cite specific cases if you're going to make that claim. Here is one that supports mine: http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf Ctrl-F "reasonable expectation of privacy"

tptacek 15y ago
The syllabus of this opinion, which I cited upthread, says that the court didn't have to consider "reasonable expectation of privacy" (like I said, Scalia's majority opinion turns on the fact that you can't tamper with someone's person effects, including their car, and claim not to be encumbered by the 4th Amendment). The opinion goes on to repeatedly affirm that drivers on public roads do not have a reasonable expectation of privacy. For the Constitutionality of searches without warrants in exigent circumstances or in situations where searches have limited scope and support a legitimate interest of the state, how about GM Leasing v United States. Also, Katz is a case that comes up a lot in SCOTUS opinions about "reasonable" search (we have Katz to thank for the fact that wiretaps require warrants). From the majority opinion: What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. http://scholar.google.com/scholar_case?case=9210492700696416594 http://scholar.google.com/scholar_case?case=9210492700696416... Finally, Griswold is the case everyone cites with regards to a specific right to privacy. But if you look at cases that follow it, like Lawrence v. Texas, we again see words like "legitimate state interest" (Ctr-F for it). My point here isn't that there's no Constitutional protection of privacy. I'm just saying that there's no enumerated right to privacy, and implying that privacy protections under the Constitutions are lesser protections compared to freedom of speech and religion, or the freedom to bear arms. Of the possible freedoms a Constitution could explicitly grant, "privacy" seems like one of the least tenable, given how often privacy comes into tension with law enforcement.
- Nrsolis 15y ago
  Read the whole case and consider these salient points: -The cops did in fact get a warrant to place a GPS device on the subjects car, but did so outside the terms of the warrant. -The argument that the actual installation and tracking didn't constitute a search was rejected. The point I'm trying to make is that there are lots of congruent mechanisms that make this information available to third parties that aren't necessarily going to be encumbered by the need to install a "tracking device" on a subject vehicle. Lots of information is already collected in the normal and proper operation of things like cellphones (for E911 -or- Facebook). There is VERY little case-law on this specific subject but I think my point (which we were originally arguing) that there is a "reasonable expectation of privacy" is enshrined in law. The fact that you are driving a car on a public road isn't necessarily private, but I think it would be reasonable to suggest that the exact movements of a person over a period of a year (for example), to include who they might be co-located with in a specific property, or other pertinent meta-data DOES constitute something we would reasonably expect to be private. To your other point: "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." There are MANY MANY instances where personal data is exported and stored without the knowledge of an individual that create all sorts of legal minefields for you. For example, I might be fully aware that my car is not invisible and can be seen by people on my street. I might be completely unaware that my cellphone is regularly broadcasting my location to Verizon or ATT even when I'm not using it. There is a HUGE gap in public understanding of the practical effects of this technology use and the repercussions of that use. This "reasonable expectation of privacy" bit is going to collide with technology in a big big way IMHO.
  - tptacek 15y ago
    Doesn't every criminal who is followed by a surreptitious police tail then get to claim the same reasonable expectation that nobody should have known about his specific transit from a drug corner to the stash house? Everybody wants privacy in every situation. The whole point of there being a notion of a "reasonable expectation" to it is that a line has to be drawn somewhere. Without it, there'd be no law enforcement at all.

by Nrsolis 15y ago

tptacek 15y ago

The syllabus of this opinion, which I cited upthread, says that the court didn't have to consider "reasonable expectation of privacy" (like I said, Scalia's majority opinion turns on the fact that you can't tamper with someone's person effects, including their car, and claim not to be encumbered by the 4th Amendment). The opinion goes on to repeatedly affirm that drivers on public roads do not have a reasonable expectation of privacy. For the Constitutionality of searches without warrants in exigent circumstances or in situations where searches have limited scope and support a legitimate interest of the state, how about GM Leasing v United States. Also, Katz is a case that comes up a lot in SCOTUS opinions about "reasonable" search (we have Katz to thank for the fact that wiretaps require warrants). From the majority opinion: What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. http://scholar.google.com/scholar_case?case=9210492700696416594 http://scholar.google.com/scholar_case?case=9210492700696416... Finally, Griswold is the case everyone cites with regards to a specific right to privacy. But if you look at cases that follow it, like Lawrence v. Texas, we again see words like "legitimate state interest" (Ctr-F for it). My point here isn't that there's no Constitutional protection of privacy. I'm just saying that there's no enumerated right to privacy, and implying that privacy protections under the Constitutions are lesser protections compared to freedom of speech and religion, or the freedom to bear arms. Of the possible freedoms a Constitution could explicitly grant, "privacy" seems like one of the least tenable, given how often privacy comes into tension with law enforcement.

Nrsolis 15y ago
Read the whole case and consider these salient points: -The cops did in fact get a warrant to place a GPS device on the subjects car, but did so outside the terms of the warrant. -The argument that the actual installation and tracking didn't constitute a search was rejected. The point I'm trying to make is that there are lots of congruent mechanisms that make this information available to third parties that aren't necessarily going to be encumbered by the need to install a "tracking device" on a subject vehicle. Lots of information is already collected in the normal and proper operation of things like cellphones (for E911 -or- Facebook). There is VERY little case-law on this specific subject but I think my point (which we were originally arguing) that there is a "reasonable expectation of privacy" is enshrined in law. The fact that you are driving a car on a public road isn't necessarily private, but I think it would be reasonable to suggest that the exact movements of a person over a period of a year (for example), to include who they might be co-located with in a specific property, or other pertinent meta-data DOES constitute something we would reasonably expect to be private. To your other point: "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." There are MANY MANY instances where personal data is exported and stored without the knowledge of an individual that create all sorts of legal minefields for you. For example, I might be fully aware that my car is not invisible and can be seen by people on my street. I might be completely unaware that my cellphone is regularly broadcasting my location to Verizon or ATT even when I'm not using it. There is a HUGE gap in public understanding of the practical effects of this technology use and the repercussions of that use. This "reasonable expectation of privacy" bit is going to collide with technology in a big big way IMHO.
- tptacek 15y ago
  Doesn't every criminal who is followed by a surreptitious police tail then get to claim the same reasonable expectation that nobody should have known about his specific transit from a drug corner to the stash house? Everybody wants privacy in every situation. The whole point of there being a notion of a "reasonable expectation" to it is that a line has to be drawn somewhere. Without it, there'd be no law enforcement at all.