3 ms·

Here's the text of the fourth amendment. Could you explain how "scope" and "incentives" are relevant distinguishing factors under that? "The right of the peopl

by rayiner 6mo ago

Here's the text of the fourth amendment. Could you explain how "scope" and "incentives" are relevant distinguishing factors under that? "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." As relevant here, there's two pieces. The threshold requirement is some sort of ownership. The right exists with respect to "their persons, houses, papers, and effects." Assuming digital data constitutes "papers," the accused has to show that it's "their" papers. The hypothetical you're responding to compares the bank's camera footage with the cell phone company's location information. Those seem indistinguishable for that prong. You have a reasonable argument that "scope" and "incentives" are relevant to the second prong of what's "unreasonable." But you don't get there if you don't get past the first prong, right?

wak90 6mo ago
Has anything changed since the sacred texts were written or we just going to keep acting as though we can never adjust the laws
- lotsofpulp 6mo ago
  In the context of this thread, that would (ideally) fall under Congress’s purview, not the Supreme Court.
- rayiner 6mo ago
  Your point cuts in the other direction. The police and the judge who issued the warrant followed current Virginia law. Voters in Virginia could "adjust the laws" to ban the use of geolocation data. They haven't done so. So the plaintiffs in this case are trying to get the dead hand of the founders to smack the police and the judge. They're the ones invoking "sacred texts" written 237 years ago by a bunch of old white guys to ask the Supreme Court to overrule what police in Virginia did pursuant to Virginia law. Your post raises the question: who is the "we" you're referring to--the "we" who is empowered to "adjust the laws?" Who is empowered to decide whether circumstances have, in fact, changed? And if there has been a change--which way do those changes cut? Surely it's the current voters of Virginia who get to make that decision, right?
  - ceejayoz 6mo ago
    > The police and the judge who issued the warrant followed current Virginia law. But the Supremacy Clause says the Constitution overrides Virginia law. If we decide the Fourth Amendment applies here, Virginia law loses.
    - rayiner 6mo ago
      > If we decide the Fourth Amendment applies here, Virginia law loses. Yes, but the only way to do that is to say that the dead hand of the founders overrules current Virginia law. The plaintiffs want James Madison from his grave to impose restrictions on the police that voters in Virginia in 2026 have declined to impose.
      - ceejayoz 6mo ago
        That’s how it works. Virginia voters similarly can’t legalize slavery or ban the New York Times. The age of the restriction is irrelevant.
        rayiner 6mo ago
        > The age of the restriction is irrelevant. Not according to the comment I was responding to: "Has anything changed since the sacred texts were written or we just going to keep acting as though we can never adjust the laws."
        ceejayoz 6mo ago
        There's more than one bit of flow chart here. Things can change in a way that's covered by the Constitution. Say, technology that makes Fourth Amendment violations easier to do; still potentially covered! Things can change in a way that's not covered by the Constitution. Now you need an amendment. The Fourth Amendment is quite broad and can thus handle all sorts of change.
        shadowgovt 6mo ago
- nxobject 6mo ago
  A majority-conservative Supreme Court's on an originalism kick, so we're very much stuck "when the sacred texts were written".
  - triceratops 6mo ago
    Only when it's the way they want to rule.
- dylan604 6mo ago
  That's something that gets me every time I hear phrases like 'exact reading' of the Constitution. Do we honestly believe the writers of the document would have written exactly the same if they had today's technology? There's no way they could fathom always on two-way realtime radio communication devices, but they could easily have written the Constitution accordingly if they had them. The spirit and intent was clear. We're just willfully ignoring that intent because it would be inconvenient for big brother to do the snooping.
  - moduspol 6mo ago
    IMO it is tangibly different. Having yourself, your things, or your house searched in the 1700s is a much bigger inconvenience and invasion of privacy than a cellular provider noting your phone was in the general vicinity of an area. I don't think the spirit or intent of the amendment would apply in cases where there is no tangible impact to the individual being searched. If we don't want the government to be able to do that, we should pass laws to that effect.
    - jacquesm 6mo ago
      It is because your cellphone is a proxy for you.
      - moduspol 6mo ago
        A third party giving an indication as to where my phone might be is not comparable to having my house searched by soldiers. Though again, making no judgment as to whether or not it should be allowed. I just think it should be a law, and not casting modern values on the 1700s era founders' words.
        jacquesm 6mo ago
        Oh, absolutely. But the general idea here is that just because it can be done without inconveniencing you should not really make a difference: there were no such things as databases and remote monitoring in those days unless you want to equate some written record in the physical possession of the authorities as a 'search of your person', which it clearly would not be. So this tech angle opens up all kinds of cans of worms (scale, speed, scope to name a few) and the founders whose words are holy had absolutely no way to anticipate this. If they had I'm fairly sure they would have had something reasonable to be said about it, those were pretty smart guys and they seem to have had the right intent on safeguarding the country for as far as they could look ahead. I'm also pretty sure they would be 100% horrified by what it has become. So yes, it should be law. The US supreme court however does not make laws (or at least, they shouldn't be), they interpret the constitution. And the US constitution is well overdue for a more tech aware version, it's just that with the lawmakers apparently in the pockets of the tech billionaires I think that the chances of such an overhaul approach zero.
- Exoristos 6mo ago
  Or we can "keep acting" like there's no duly-constituted amendment process.
- shadowgovt 6mo ago
  It is a (possibly flawed) feature of the US Constitutional form of government that there is a proper channel for adjusting the enumerated rights in it, and that process is via amendment. I'd like it to be otherwise, but this Court has demonstrated in its overturning of Roe v. Wade that the risk of leaving it up to SCOTUS to synthesize "prenumbrae" and rights to privacy (which would have not been a thing anyone would have written in the 1700s) is that reasonable people can disagree on what those things are, unless you write them down explicitly in the document that requires a lot of effort to change.
deleted 6mo ago
[deleted]

by rayiner 6mo ago

wak90 6mo ago

Has anything changed since the sacred texts were written or we just going to keep acting as though we can never adjust the laws

lotsofpulp 6mo ago
In the context of this thread, that would (ideally) fall under Congress’s purview, not the Supreme Court.
rayiner 6mo ago
Your point cuts in the other direction. The police and the judge who issued the warrant followed current Virginia law. Voters in Virginia could "adjust the laws" to ban the use of geolocation data. They haven't done so. So the plaintiffs in this case are trying to get the dead hand of the founders to smack the police and the judge. They're the ones invoking "sacred texts" written 237 years ago by a bunch of old white guys to ask the Supreme Court to overrule what police in Virginia did pursuant to Virginia law. Your post raises the question: who is the "we" you're referring to--the "we" who is empowered to "adjust the laws?" Who is empowered to decide whether circumstances have, in fact, changed? And if there has been a change--which way do those changes cut? Surely it's the current voters of Virginia who get to make that decision, right?
- ceejayoz 6mo ago
  > The police and the judge who issued the warrant followed current Virginia law. But the Supremacy Clause says the Constitution overrides Virginia law. If we decide the Fourth Amendment applies here, Virginia law loses.
  - rayiner 6mo ago
    > If we decide the Fourth Amendment applies here, Virginia law loses. Yes, but the only way to do that is to say that the dead hand of the founders overrules current Virginia law. The plaintiffs want James Madison from his grave to impose restrictions on the police that voters in Virginia in 2026 have declined to impose.
    - ceejayoz 6mo ago
      That’s how it works. Virginia voters similarly can’t legalize slavery or ban the New York Times. The age of the restriction is irrelevant.
      - rayiner 6mo ago
        > The age of the restriction is irrelevant. Not according to the comment I was responding to: "Has anything changed since the sacred texts were written or we just going to keep acting as though we can never adjust the laws."
        ceejayoz 6mo ago
        There's more than one bit of flow chart here. Things can change in a way that's covered by the Constitution. Say, technology that makes Fourth Amendment violations easier to do; still potentially covered! Things can change in a way that's not covered by the Constitution. Now you need an amendment. The Fourth Amendment is quite broad and can thus handle all sorts of change.
      - shadowgovt 6mo ago
nxobject 6mo ago
A majority-conservative Supreme Court's on an originalism kick, so we're very much stuck "when the sacred texts were written".
- triceratops 6mo ago
  Only when it's the way they want to rule.
dylan604 6mo ago
That's something that gets me every time I hear phrases like 'exact reading' of the Constitution. Do we honestly believe the writers of the document would have written exactly the same if they had today's technology? There's no way they could fathom always on two-way realtime radio communication devices, but they could easily have written the Constitution accordingly if they had them. The spirit and intent was clear. We're just willfully ignoring that intent because it would be inconvenient for big brother to do the snooping.
- moduspol 6mo ago
  IMO it is tangibly different. Having yourself, your things, or your house searched in the 1700s is a much bigger inconvenience and invasion of privacy than a cellular provider noting your phone was in the general vicinity of an area. I don't think the spirit or intent of the amendment would apply in cases where there is no tangible impact to the individual being searched. If we don't want the government to be able to do that, we should pass laws to that effect.
  - jacquesm 6mo ago
    It is because your cellphone is a proxy for you.
    - moduspol 6mo ago
      A third party giving an indication as to where my phone might be is not comparable to having my house searched by soldiers. Though again, making no judgment as to whether or not it should be allowed. I just think it should be a law, and not casting modern values on the 1700s era founders' words.
      - jacquesm 6mo ago
        Oh, absolutely. But the general idea here is that just because it can be done without inconveniencing you should not really make a difference: there were no such things as databases and remote monitoring in those days unless you want to equate some written record in the physical possession of the authorities as a 'search of your person', which it clearly would not be. So this tech angle opens up all kinds of cans of worms (scale, speed, scope to name a few) and the founders whose words are holy had absolutely no way to anticipate this. If they had I'm fairly sure they would have had something reasonable to be said about it, those were pretty smart guys and they seem to have had the right intent on safeguarding the country for as far as they could look ahead. I'm also pretty sure they would be 100% horrified by what it has become. So yes, it should be law. The US supreme court however does not make laws (or at least, they shouldn't be), they interpret the constitution. And the US constitution is well overdue for a more tech aware version, it's just that with the lawmakers apparently in the pockets of the tech billionaires I think that the chances of such an overhaul approach zero.
Exoristos 6mo ago
Or we can "keep acting" like there's no duly-constituted amendment process.
shadowgovt 6mo ago
It is a (possibly flawed) feature of the US Constitutional form of government that there is a proper channel for adjusting the enumerated rights in it, and that process is via amendment. I'd like it to be otherwise, but this Court has demonstrated in its overturning of Roe v. Wade that the risk of leaving it up to SCOTUS to synthesize "prenumbrae" and rights to privacy (which would have not been a thing anyone would have written in the 1700s) is that reasonable people can disagree on what those things are, unless you write them down explicitly in the document that requires a lot of effort to change.

deleted 6mo ago

[deleted]