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Don't worry: SCOTUS will determine that the Framers did not have a history and tradition of protecting metadata, so the Fourth Amendment has no application here

Don't worry: SCOTUS will determine that the Framers did not have a history and tradition of protecting metadata, so the Fourth Amendment has no application here; and, furthermore, the Court's recent jurisprudence regarding the Executive (dieu et mon droit) necessarily implies that the Government has an extremely compelling interest sufficient to overcome the Fourth Amendment and permit warrantless searches of everyone in the United States and elsewhere.

zdragnar 2y ago
My understanding of this case has nothing to do with metadata. The communications were captured in full because one party was not a citizen in the US (under national security reasons). Those communications were then stored and made available in full via keyword based search interfaces, and those later searches were made without first securing a warrant. I'm not going to bother reading the tea leaves too closely on this one, but I'd put it at least at even odds the supreme court would say the 4th amendment does apply here.
- idrathernot 2y ago
  I think “metadata” is meant as an example of Barnum statement in the context of the original comment. It is very common for courts to reinterpret language as a means of getting to a specific end. Same reason that “Interstate Commerce” actually means all commerce in the 10th amendment.
  - Retric 2y ago
    No, a background of interstate commerce is considered to be meaningful. It’s why the Texas power grid being so isolating has meaning. However the court views a commodity as influencing and being influenced by interstate trade even if that specific gallon of oil never crossed state lines. From a purely economic standpoint it’s a reasonable take. Even Europe’s use of oil influences US oil prices let alone what happens in another state. It’s both an upside and downside of the judicial system that they take things in context.
    - AnthonyMouse 2y ago
      There are two problems with that. The first is that the purpose of giving "interstate commerce" to the federal government was to address the problems incident to interstate commerce, e.g. someone in New York buys something from someone in Florida and there is a dispute, but New York doesn't have jurisdiction over the seller and Florida isn't interested in protecting New York buyers from Florida sellers. The sort of general purpose economic regulations at issue in Wickard weren't intended to be in scope to begin with. And the second is that as soon as you let go of that limiting principle, you don't have a limiting principle. "Texas has its own power grid" but if Texas has lower or higher power costs then customers might be more or less inclined to locate in Texas rather than some other state and affect demand for power in some other state, so the distinction is lost and there is a practical erasure of any line at all.
      - Retric 2y ago
        > a practical erasure of any line at all Not really the Texas power grid is hardly the only example. Banning products like say Fireworks is a much broader exception. If there’s no marker to regulate then the feds can’t get involved. This applies to more than just total bans, it’s also why California can have such influence on automobiles and Texas influences textbooks etc. You may feel there’s not enough things that fall into the exclusion, but that’s not the same thing as the exclusion not existing. > address the problems incident to interstate commerce Trademark infringement on trademarks held by an out of state entity breaks the principle you’re talking about without any sale directly crossing state lines. Same deal if some state decides to subsidize growing broccoli, and that’s ultimately what decided the issue.
        AnthonyMouse 2y ago
        > This applies to more than just total bans, it’s also why California can have such influence on automobiles and Texas influences textbooks etc. This isn't because the existing commerce clause jurisprudence excludes the federal government from regulating these things, it's because the federal legislature passed legislation carving out an exception for California to do that: https://en.wikipedia.org/wiki/Clean_Air_Act_(United_States)#Federalism https://en.wikipedia.org/wiki/Clean_Air_Act_(United_States)#... > Trademark infringement on trademarks held by an out of state entity breaks the principle you’re talking about without any sale directly crossing state lines. Trademarks are already regional. If there is a Joe's Diner in California and another one run by a completely different Joe in Massachusetts, there isn't a problem any more than it would be if there was an independent Joe's Diner in Canada or England. Whereas if there is a Joe's Diner chain headquartered in California which is operating franchises in Massachusetts and they therefore want a federal rather than state-level trademark on the name, that's interstate commerce. Making interstate operations a prerequisite for a federal trademark would not be a real problem. > Same deal if some state decides to subsidize growing broccoli, and that’s ultimately what decided the issue. That's not what happened in Wickard. The state wasn't subsidizing anything, the federal government was prohibiting farmers from growing wheat. One of the farmers grew wheat for his own use, in the same state, and was fined for it. The Court's theory was that this affected interstate commerce, because if he didn't grow it then he might have bought it. Which is a problem if you're trying to do national-level central planning of wheat production, but that's not what the commerce clause is supposed to be for. Everything "affects" interstate commerce. The purpose of the grant is supposed to be to deal with the issues that arise specifically as a result of commercial interactions between people in different states.
  - rayiner 2y ago
    Except in cases involving “metadata,” there’s typically a highly relevant difference in terms of who owns the data. The fourth amendment says: > The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated… You have a right as to your data, but not other people’s data about you. E.g. you have no right as to a pharmacy’s business records about you. (That’s their data, not your data.) To my knowledge, no court has ever distinguished between say image and the file metadata on someone’s computer. But the way “metadata” becomes relevant is often because someone else owns “metadata” about your files, such as server logs.
landryraccoon 2y ago
Can you explain why? That doesn’t seem like sound reasoning to me. If you believe the reason is corruption, what personal incentive would the courts have to rule this way? Judges can easily be the victim of government overreach as well.
- svachalek 2y ago
  Data is wealth and power, and today's Supreme Court will always side with wealth and power.
  - Aloisius 2y ago
    I'm not sure what this means. The Supreme Court will side with data because it is wealth and power? What side is an inanimate object on?
    - RiverCrochet 2y ago
      Data in this case is on the side of wealth and power. You're also wrong about it being an inanimate object for two reasons. Reason A: Data is not an object but a pattern of objects or attributes of object(s) wherein the arrangement forms symbols according to a standard or protocol. Reason B: Data is quite animated when moving e.g. in response to searches or otherwise (re)-transmitted.
      - Aloisius 2y ago
        We have more than one wealthy and powerful person. They're rarely all on the same side. So regardless of how courts rule on most issues, one could almost always argue they're taking the side of wealth and power and against the side of wealth and power. And data is inanimate in the dictionary definition sense of it not being alive. That other things can move it doesn't make it animate.
- idrathernot 2y ago
  And having a log of every conversation and keystroke that any outspoken judge has ever made gives you all sorts of ways to align their opinions with the above all importance of “National Security”
reverendsteveii 2y ago
The people whose job it is to interpret the law have abandoned any pretense of doing that in favor of shoving words into the mouths of men who died before humans discovered dinosaurs. The court is openly, brazenly corrupt.
- rayiner 2y ago
  In a democracy, what method would you propose judges use to impose restrictions on the actions of the democratically elected government based on a written constitution?
  - AyyEye 2y ago
    > what method would you propose judges use to impose restrictions Judges are appointed (or voted in) by the very people you think they "impose restriction" on. Any ruling against the ruling class in our favor is nothing more than a happy accident.
    - tptacek 2y ago
      Do you have an argument that would be persuasive to someone who doesn't believe that representative democracy is fundamentally flawed or somehow inoperative in the US?
    - rayiner 2y ago
      Okay, but, in your view, how should they go about determining when to impose restrictions on the government?
rayiner 2y ago
You mean like in Riley, which was authored by Chief Justice Roberts and was a 9-0 decision? https://en.wikipedia.org/wiki/Riley_v._California https://en.wikipedia.org/wiki/Riley_v._California > Riley has been widely praised as “a sweeping victory for privacy rights”[5] with legal scholars describing the decision as "the privacy gift that keeps on giving." Since then the Court has picked up another privacy hawk (Justice Gorsuch), and another Justice (Barrett) that's also pretty strong on privacy: https://www.protectprivacynow.org/news/how-will-a-justice-amy-coney-barrett-rule-on-surveillance-and-privacy-issues https://www.protectprivacynow.org/news/how-will-a-justice-am....
- dgfitz 2y ago
  [flagged]
- 1oooqooq 2y ago
  the 2001 upgrade to FISA made the suppreme court irrelevant in matters of citizen privacy. what they are deciding now is how to dress the mechanics of it.
- cherry_tree 2y ago
  To be fair the current court in 2025 is a different court than 2018, and in 2024 they overruled a long standing precedent in the chevron doctrine. It wouldn’t be out of the realm of possibility that this court would disregard Riley. I do agree that it currently like the court is broadly pro-privacy but I also think it entirely depends on the case and its specifics.
  - rayiner 2y ago
    Five of the Riley justices are still on the court. Of the four that aren’t, there’s two that seem stronger on privacy than his or her predecessor (Gorsuch, KBJ), one that seems like a wash (Kavanaugh), and maybe one that’s less strong on privacy (Barrett). You can point to Roe and Chevron, but those didn’t come out of nowhere. The first, conservatives vowed to overturn 50 years ago—and its expansive notion of judicially declaring rights is not embraced even among liberals on the court today. The second was a judge created interpretive doctrine anyway, and proved unworkable over time. But it also didn’t come out of nowhere. Gorsuch has been writing about it since before I was in law school, and that was 15 years ago.
Terr_ 2y ago
> that the Framers Relevant, even though he's not a "framer": "Using Metadata to find Paul Revere" - https://kieranhealy.org/blog/archives/2013/06/09/using-metadata-to-find-paul-revere/ https://kieranhealy.org/blog/archives/2013/06/09/using-metad... > But I say again, if a mere scribe such as I—one who knows nearly nothing—can use the very simplest of these methods to pick the name of a traitor like Paul Revere from those of two hundred and fifty four other men, using nothing but a list of memberships and a portable calculating engine, then just think what weapons we might wield in the defense of liberty one or two centuries from now.
matthewdgreen 2y ago
The new administration just ordered the resignation of every Democratic-appointed member on the Privacy and Civil Liberties Oversight - this is the body that oversees the intelligence agencies and makes sure they don't abuse their power to spy on Americans. So much for dismantling the deep state.
deleted 2y ago
[deleted]

zdragnar 2y ago

My understanding of this case has nothing to do with metadata. The communications were captured in full because one party was not a citizen in the US (under national security reasons). Those communications were then stored and made available in full via keyword based search interfaces, and those later searches were made without first securing a warrant. I'm not going to bother reading the tea leaves too closely on this one, but I'd put it at least at even odds the supreme court would say the 4th amendment does apply here.

idrathernot 2y ago
I think “metadata” is meant as an example of Barnum statement in the context of the original comment. It is very common for courts to reinterpret language as a means of getting to a specific end. Same reason that “Interstate Commerce” actually means all commerce in the 10th amendment.
- Retric 2y ago
  No, a background of interstate commerce is considered to be meaningful. It’s why the Texas power grid being so isolating has meaning. However the court views a commodity as influencing and being influenced by interstate trade even if that specific gallon of oil never crossed state lines. From a purely economic standpoint it’s a reasonable take. Even Europe’s use of oil influences US oil prices let alone what happens in another state. It’s both an upside and downside of the judicial system that they take things in context.
  - AnthonyMouse 2y ago
    There are two problems with that. The first is that the purpose of giving "interstate commerce" to the federal government was to address the problems incident to interstate commerce, e.g. someone in New York buys something from someone in Florida and there is a dispute, but New York doesn't have jurisdiction over the seller and Florida isn't interested in protecting New York buyers from Florida sellers. The sort of general purpose economic regulations at issue in Wickard weren't intended to be in scope to begin with. And the second is that as soon as you let go of that limiting principle, you don't have a limiting principle. "Texas has its own power grid" but if Texas has lower or higher power costs then customers might be more or less inclined to locate in Texas rather than some other state and affect demand for power in some other state, so the distinction is lost and there is a practical erasure of any line at all.
    - Retric 2y ago
      > a practical erasure of any line at all Not really the Texas power grid is hardly the only example. Banning products like say Fireworks is a much broader exception. If there’s no marker to regulate then the feds can’t get involved. This applies to more than just total bans, it’s also why California can have such influence on automobiles and Texas influences textbooks etc. You may feel there’s not enough things that fall into the exclusion, but that’s not the same thing as the exclusion not existing. > address the problems incident to interstate commerce Trademark infringement on trademarks held by an out of state entity breaks the principle you’re talking about without any sale directly crossing state lines. Same deal if some state decides to subsidize growing broccoli, and that’s ultimately what decided the issue.
      - AnthonyMouse 2y ago
        > This applies to more than just total bans, it’s also why California can have such influence on automobiles and Texas influences textbooks etc. This isn't because the existing commerce clause jurisprudence excludes the federal government from regulating these things, it's because the federal legislature passed legislation carving out an exception for California to do that: https://en.wikipedia.org/wiki/Clean_Air_Act_(United_States)#Federalism https://en.wikipedia.org/wiki/Clean_Air_Act_(United_States)#... > Trademark infringement on trademarks held by an out of state entity breaks the principle you’re talking about without any sale directly crossing state lines. Trademarks are already regional. If there is a Joe's Diner in California and another one run by a completely different Joe in Massachusetts, there isn't a problem any more than it would be if there was an independent Joe's Diner in Canada or England. Whereas if there is a Joe's Diner chain headquartered in California which is operating franchises in Massachusetts and they therefore want a federal rather than state-level trademark on the name, that's interstate commerce. Making interstate operations a prerequisite for a federal trademark would not be a real problem. > Same deal if some state decides to subsidize growing broccoli, and that’s ultimately what decided the issue. That's not what happened in Wickard. The state wasn't subsidizing anything, the federal government was prohibiting farmers from growing wheat. One of the farmers grew wheat for his own use, in the same state, and was fined for it. The Court's theory was that this affected interstate commerce, because if he didn't grow it then he might have bought it. Which is a problem if you're trying to do national-level central planning of wheat production, but that's not what the commerce clause is supposed to be for. Everything "affects" interstate commerce. The purpose of the grant is supposed to be to deal with the issues that arise specifically as a result of commercial interactions between people in different states.
- rayiner 2y ago
  Except in cases involving “metadata,” there’s typically a highly relevant difference in terms of who owns the data. The fourth amendment says: > The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated… You have a right as to your data, but not other people’s data about you. E.g. you have no right as to a pharmacy’s business records about you. (That’s their data, not your data.) To my knowledge, no court has ever distinguished between say image and the file metadata on someone’s computer. But the way “metadata” becomes relevant is often because someone else owns “metadata” about your files, such as server logs.

landryraccoon 2y ago

Can you explain why? That doesn’t seem like sound reasoning to me. If you believe the reason is corruption, what personal incentive would the courts have to rule this way? Judges can easily be the victim of government overreach as well.

svachalek 2y ago
Data is wealth and power, and today's Supreme Court will always side with wealth and power.
- Aloisius 2y ago
  I'm not sure what this means. The Supreme Court will side with data because it is wealth and power? What side is an inanimate object on?
  - RiverCrochet 2y ago
    Data in this case is on the side of wealth and power. You're also wrong about it being an inanimate object for two reasons. Reason A: Data is not an object but a pattern of objects or attributes of object(s) wherein the arrangement forms symbols according to a standard or protocol. Reason B: Data is quite animated when moving e.g. in response to searches or otherwise (re)-transmitted.
    - Aloisius 2y ago
      We have more than one wealthy and powerful person. They're rarely all on the same side. So regardless of how courts rule on most issues, one could almost always argue they're taking the side of wealth and power and against the side of wealth and power. And data is inanimate in the dictionary definition sense of it not being alive. That other things can move it doesn't make it animate.
idrathernot 2y ago
And having a log of every conversation and keystroke that any outspoken judge has ever made gives you all sorts of ways to align their opinions with the above all importance of “National Security”

reverendsteveii 2y ago

The people whose job it is to interpret the law have abandoned any pretense of doing that in favor of shoving words into the mouths of men who died before humans discovered dinosaurs. The court is openly, brazenly corrupt.

rayiner 2y ago
In a democracy, what method would you propose judges use to impose restrictions on the actions of the democratically elected government based on a written constitution?
- AyyEye 2y ago
  > what method would you propose judges use to impose restrictions Judges are appointed (or voted in) by the very people you think they "impose restriction" on. Any ruling against the ruling class in our favor is nothing more than a happy accident.
  - tptacek 2y ago
    Do you have an argument that would be persuasive to someone who doesn't believe that representative democracy is fundamentally flawed or somehow inoperative in the US?
  - rayiner 2y ago
    Okay, but, in your view, how should they go about determining when to impose restrictions on the government?

rayiner 2y ago

You mean like in Riley, which was authored by Chief Justice Roberts and was a 9-0 decision? https://en.wikipedia.org/wiki/Riley_v._California https://en.wikipedia.org/wiki/Riley_v._California > Riley has been widely praised as “a sweeping victory for privacy rights”[5] with legal scholars describing the decision as "the privacy gift that keeps on giving." Since then the Court has picked up another privacy hawk (Justice Gorsuch), and another Justice (Barrett) that's also pretty strong on privacy: https://www.protectprivacynow.org/news/how-will-a-justice-amy-coney-barrett-rule-on-surveillance-and-privacy-issues https://www.protectprivacynow.org/news/how-will-a-justice-am....

dgfitz 2y ago
[flagged]
1oooqooq 2y ago
the 2001 upgrade to FISA made the suppreme court irrelevant in matters of citizen privacy. what they are deciding now is how to dress the mechanics of it.
cherry_tree 2y ago
To be fair the current court in 2025 is a different court than 2018, and in 2024 they overruled a long standing precedent in the chevron doctrine. It wouldn’t be out of the realm of possibility that this court would disregard Riley. I do agree that it currently like the court is broadly pro-privacy but I also think it entirely depends on the case and its specifics.
- rayiner 2y ago
  Five of the Riley justices are still on the court. Of the four that aren’t, there’s two that seem stronger on privacy than his or her predecessor (Gorsuch, KBJ), one that seems like a wash (Kavanaugh), and maybe one that’s less strong on privacy (Barrett). You can point to Roe and Chevron, but those didn’t come out of nowhere. The first, conservatives vowed to overturn 50 years ago—and its expansive notion of judicially declaring rights is not embraced even among liberals on the court today. The second was a judge created interpretive doctrine anyway, and proved unworkable over time. But it also didn’t come out of nowhere. Gorsuch has been writing about it since before I was in law school, and that was 15 years ago.

Terr_ 2y ago

> that the Framers Relevant, even though he's not a "framer": "Using Metadata to find Paul Revere" - https://kieranhealy.org/blog/archives/2013/06/09/using-metadata-to-find-paul-revere/ https://kieranhealy.org/blog/archives/2013/06/09/using-metad... > But I say again, if a mere scribe such as I—one who knows nearly nothing—can use the very simplest of these methods to pick the name of a traitor like Paul Revere from those of two hundred and fifty four other men, using nothing but a list of memberships and a portable calculating engine, then just think what weapons we might wield in the defense of liberty one or two centuries from now.

matthewdgreen 2y ago

The new administration just ordered the resignation of every Democratic-appointed member on the Privacy and Civil Liberties Oversight - this is the body that oversees the intelligence agencies and makes sure they don't abuse their power to spy on Americans. So much for dismantling the deep state.

deleted 2y ago

[deleted]