5 ms·

Aren't you being a little disingenuous here? The whole point of getting a warrant is to justify to a competent legal authority (judge) that the specific right

by Nrsolis 15y ago

Aren't you being a little disingenuous here? The whole point of getting a warrant is to justify to a competent legal authority (judge) that the specific right (reasonable expectation of privacy) is outweighed by the states interest (upholding the law). NOBODY here is claiming that this right is absolute. More to the point: if the cops had simply done their job and obtained the warrant, executed it properly, and stayed within the confines of that warrant, there is no case for the SCOTUS to hear.

tptacek 15y ago
We're talking about the margins of warrant requirements and the expectation to privacy. Nobody's being disingenuous. The territory here simply isn't clear. Again: the FBI lost this case because they physically tampered with someone else's effects. They did not lose because SCOTUS determined that people have a reasonable expectation of privacy in their public movements. Which is unsurprising, because SCOTUS has explicitly said people don't reasonably have that expectation. So, no. Not being disingenuous. Again: under your reasoning, couldn't the drug dealer fall back on their reasonable expectation of not having someone tail them as they transited from the drug corner to the stash house? Because the police can obviously do that without a warrant.
- Nrsolis 15y ago
  And again, I go back to REASONABLE. Cops following the guy is fine. Reasonable. But your argument falls apart if the cops can go to Verizon or AT&T and pull your cached GPS data without a warrant. I certainly feel like that would be an unreasonable search. I think most people would agree with me. I think that's where the law will ultimately take us too.
  - tptacek 15y ago
    Is the line maybe at "real-time"? Maybe the concern is best expressed as, "we don't feel it's OK for the police to RETROACTIVELY pull information about our location history; perhaps it's not reasonable for us to feel private about standing on a street corner or driving down an interstate, but we certainly feel private about the totality of everywhere we've been for the past month". Maybe we feel it's more reasonable for the police to tail us because they're collecting the information actively and in real-time.
    - Nrsolis 15y ago
      Or maybe we feel like its reasonable because there is less chance that something we did in the past might be made illegal (and therefore prosecutable) in the future. Here is where I tend to disagree with strict constructionists: the framers were particularly aware that future situations might call for adjustments to the Constitution. It was far more important to generally provide a set of principles that could be adopted by a society and then adjusted as their reality evolved. There is no way that the Framers could have foreseen wall-penetrating radar systems or GPS-enabled cellphones. Our justice system had a hard enough time coming to grips with the telephone and what that meant for Fourth Amendment protections. Since the Right to Privacy isn't enumerated but rather implied by the other Rights, we are probably going to see more cases similar in context U.S. v. Jones where the technical capability to track someone exists that doesn't involve an actual trespass by law-enforcement.
      - tptacek 15y ago
        Ok, I follow you. But if the thing that bites us about cell tower logs is the retroactive character of it, what about other technologies that make it easier for the police to surveil us? For instance, the police already have closed circuit camera networks for which they need no court order to monitor people on. In fact, they can even use them to research subjects retroactively. What about image recognition on those cameras? It won't be long before they can just punch in a license plate number.
        Nrsolis 15y ago
        There are already problems along these lines. Here in CT there was a minor kerfuffle over the storage of license plate information (gathered by automatic number plate recognition systems on cruisers) long past the stated purpose of identifying stolen vehicles and expired registrations wanted individuals. This fact was actually concealed from the public until there was a full-court press to discover the truth. These kinds of legal questions are no longer theoretical; the feared actions are now happening as predicted. How comfortable do you feel about the government compiling a dossier of your movements? Do you believe that there isn't some chance that this data will tempt someone to use it improperly?

by Nrsolis 15y ago

tptacek 15y ago

We're talking about the margins of warrant requirements and the expectation to privacy. Nobody's being disingenuous. The territory here simply isn't clear. Again: the FBI lost this case because they physically tampered with someone else's effects. They did not lose because SCOTUS determined that people have a reasonable expectation of privacy in their public movements. Which is unsurprising, because SCOTUS has explicitly said people don't reasonably have that expectation. So, no. Not being disingenuous. Again: under your reasoning, couldn't the drug dealer fall back on their reasonable expectation of not having someone tail them as they transited from the drug corner to the stash house? Because the police can obviously do that without a warrant.

Nrsolis 15y ago
And again, I go back to REASONABLE. Cops following the guy is fine. Reasonable. But your argument falls apart if the cops can go to Verizon or AT&T and pull your cached GPS data without a warrant. I certainly feel like that would be an unreasonable search. I think most people would agree with me. I think that's where the law will ultimately take us too.
- tptacek 15y ago
  Is the line maybe at "real-time"? Maybe the concern is best expressed as, "we don't feel it's OK for the police to RETROACTIVELY pull information about our location history; perhaps it's not reasonable for us to feel private about standing on a street corner or driving down an interstate, but we certainly feel private about the totality of everywhere we've been for the past month". Maybe we feel it's more reasonable for the police to tail us because they're collecting the information actively and in real-time.
  - Nrsolis 15y ago
    Or maybe we feel like its reasonable because there is less chance that something we did in the past might be made illegal (and therefore prosecutable) in the future. Here is where I tend to disagree with strict constructionists: the framers were particularly aware that future situations might call for adjustments to the Constitution. It was far more important to generally provide a set of principles that could be adopted by a society and then adjusted as their reality evolved. There is no way that the Framers could have foreseen wall-penetrating radar systems or GPS-enabled cellphones. Our justice system had a hard enough time coming to grips with the telephone and what that meant for Fourth Amendment protections. Since the Right to Privacy isn't enumerated but rather implied by the other Rights, we are probably going to see more cases similar in context U.S. v. Jones where the technical capability to track someone exists that doesn't involve an actual trespass by law-enforcement.
    - tptacek 15y ago
      Ok, I follow you. But if the thing that bites us about cell tower logs is the retroactive character of it, what about other technologies that make it easier for the police to surveil us? For instance, the police already have closed circuit camera networks for which they need no court order to monitor people on. In fact, they can even use them to research subjects retroactively. What about image recognition on those cameras? It won't be long before they can just punch in a license plate number.
      - Nrsolis 15y ago
        There are already problems along these lines. Here in CT there was a minor kerfuffle over the storage of license plate information (gathered by automatic number plate recognition systems on cruisers) long past the stated purpose of identifying stolen vehicles and expired registrations wanted individuals. This fact was actually concealed from the public until there was a full-court press to discover the truth. These kinds of legal questions are no longer theoretical; the feared actions are now happening as predicted. How comfortable do you feel about the government compiling a dossier of your movements? Do you believe that there isn't some chance that this data will tempt someone to use it improperly?