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Remember, though, that a concurrence is not controlling precedent. The actual opinion in U.S. v. Jones hinges on the fact that "The Government physically occup

Remember, though, that a concurrence is not controlling precedent. The actual opinion in U.S. v. Jones hinges on the fact that "The Government physically occupied private property for the purpose of obtaining information," and also stated "[t]his Court has to date not deviated from the understanding that mere visual observation does not constitute a search."

estearum 2mo ago
Correct, and the controlling opinion remained ambivalent as to the question that fluidstack (or whatever) believes is so concretely obvious. So the controlling opinion said: "we won't answer this question." The concurring opinion (signed by 5) said "fluidstack is wrong."
- otterley 2mo ago
  There were two concurring opinions in that case: One was signed by Justices Alito, Ginsburg, Breyer, and Kagan. The other--the one whose quotes you cite--was Justice Sotomayor's alone. There can't be a "concurring opinion" signed by five Justices. An opinion signed by five Justices is a majority, and would constitute the Opinion of the Court. I think that the most we can say right now is that although the "plain view" doctrine has been weakened somewhat over the last couple decades, it's not completely dead yet. The fact is that there hasn't been a case on point to answer the questions as to whether 1/ALPRs constitute a "search" under the Fourth Amendment (a threshold question that must be answered "yes" to proceed further), 2/whether use of the technology can be "reasonable" under any circumstances, and 3/whether there are any exceptions to the warrant requirement. We have a long way to go before we know what the law is on this technology. Remember, too, that the Fourth Amendment has only a "reasonableness" and a warrant requirement. It does not ban technologies for surveillance outright. (See, e.g., Kyllo v. U.S., where the use of thermal surveillance technology wasn't the issue in and of itself, but rather constituted a search necessitating a warrant.) So how about you tone down the attitude a bit? You're arguing from shaky ground, and there are more constructive ways to contribute to this debate.
  - estearum 2mo ago
    Yes you're right. The "signed by five" was a misphrasing on my part. What I meant is that both the concurring opinions (signed by 5 collectively) agreed on this same point: > society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period. In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark. So no, I'm not arguing from shaky ground. And no, ample attitude is warranted against people not just advocating for unbounded state surveillance, but insisting that it is already a foregone conclusion.
    - otterley 2mo ago
      > What I meant is that both the concurring opinions (signed by 5 collectively) agreed on this same point: [...] I agree with you that the two concurrences are aligned about this. Interestingly, it did not make it into the majority opinion, even though there was a majority on this point. It probably wasn't included because it wasn't needed in order to reverse the lower court's decision; the physical violation was enough to merit a unanimous decision. > ample attitude is warranted against people not just advocating for unbounded state surveillance, but insisting that it is already a foregone conclusion. No, it isn't. It is possible, and better, to disagree with someone while remaining courteous--even on subjects you have strong feelings about. From our Guidelines: > Be kind. Don't be snarky. Converse curiously; don't cross-examine. Edit out swipes.
    - fluidcruft 2mo ago
      It's actually far more dangerous to presume we are already protected (your position) particularly based on reading tea leaves in flimsy ancillary opinions when the Court has shown itself fully happy to blow precedent out of the water, particularly with regards to privacy rights which are grounded in interpretation of the Constitution and not actual text (see Dobbs).

estearum 2mo ago

Correct, and the controlling opinion remained ambivalent as to the question that fluidstack (or whatever) believes is so concretely obvious. So the controlling opinion said: "we won't answer this question." The concurring opinion (signed by 5) said "fluidstack is wrong."

otterley 2mo ago
There were two concurring opinions in that case: One was signed by Justices Alito, Ginsburg, Breyer, and Kagan. The other--the one whose quotes you cite--was Justice Sotomayor's alone. There can't be a "concurring opinion" signed by five Justices. An opinion signed by five Justices is a majority, and would constitute the Opinion of the Court. I think that the most we can say right now is that although the "plain view" doctrine has been weakened somewhat over the last couple decades, it's not completely dead yet. The fact is that there hasn't been a case on point to answer the questions as to whether 1/ALPRs constitute a "search" under the Fourth Amendment (a threshold question that must be answered "yes" to proceed further), 2/whether use of the technology can be "reasonable" under any circumstances, and 3/whether there are any exceptions to the warrant requirement. We have a long way to go before we know what the law is on this technology. Remember, too, that the Fourth Amendment has only a "reasonableness" and a warrant requirement. It does not ban technologies for surveillance outright. (See, e.g., Kyllo v. U.S., where the use of thermal surveillance technology wasn't the issue in and of itself, but rather constituted a search necessitating a warrant.) So how about you tone down the attitude a bit? You're arguing from shaky ground, and there are more constructive ways to contribute to this debate.
- estearum 2mo ago
  Yes you're right. The "signed by five" was a misphrasing on my part. What I meant is that both the concurring opinions (signed by 5 collectively) agreed on this same point: > society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period. In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark. So no, I'm not arguing from shaky ground. And no, ample attitude is warranted against people not just advocating for unbounded state surveillance, but insisting that it is already a foregone conclusion.
  - otterley 2mo ago
    > What I meant is that both the concurring opinions (signed by 5 collectively) agreed on this same point: [...] I agree with you that the two concurrences are aligned about this. Interestingly, it did not make it into the majority opinion, even though there was a majority on this point. It probably wasn't included because it wasn't needed in order to reverse the lower court's decision; the physical violation was enough to merit a unanimous decision. > ample attitude is warranted against people not just advocating for unbounded state surveillance, but insisting that it is already a foregone conclusion. No, it isn't. It is possible, and better, to disagree with someone while remaining courteous--even on subjects you have strong feelings about. From our Guidelines: > Be kind. Don't be snarky. Converse curiously; don't cross-examine. Edit out swipes.
  - fluidcruft 2mo ago
    It's actually far more dangerous to presume we are already protected (your position) particularly based on reading tea leaves in flimsy ancillary opinions when the Court has shown itself fully happy to blow precedent out of the water, particularly with regards to privacy rights which are grounded in interpretation of the Constitution and not actual text (see Dobbs).