4 ms·

For those interested, a more detailed analysis on the history of Smith can be found in this EFF blog post: https://www.eff.org/deeplinks/2014/06/smith-v-maryla

by sinak 12y ago

For those interested, a more detailed analysis on the history of Smith can be found in this EFF blog post: https://www.eff.org/deeplinks/2014/06/smith-v-maryland-turns-35-its-healths-declining https://www.eff.org/deeplinks/2014/06/smith-v-maryland-turns... I'm by no means a lawyer, but I'd respond by saying that the judges responsible for the original decision likely didn't realize the consequences the Smith decision would have in the Internet age. So much of the digital content we produce ends up in the cloud, whether in an online backup service, SaaS, email, or otherwise. To say that sharing information with a cloud provider eliminates your expectation of privacy is almost the same as saying that it's not really possible to have any sort of private digital records whatsoever. The exception to that would be in cases where end to end encryption is implemented, and only the user holds the key. That seems to be where we're increasingly moving in a world where Smith stands, and it's certainly not optimal for law enforcement, who won't be able to access that information even with a warrant.

themartorana 12y ago
Not that I agree or disagree, but the argument is similar to the Second Amendment argument that the framers of the Constitution couldn't imagine M-16s, let alone nuclear weapons. I understand precedence, but I don't get blind adherence to it. It's a dangerous and - dare I say, lazy - to not revisit old laws and court decisions that could not imagine the present. It's odd to me for a judge not to assume (s)he has leverage to challenge old decisions - and when one does (like challenging government assertions of state secrets) they're derided as "activist." If we find an old ruling or law still valid, then so be it. But bad (and good) precedents needs constant revisiting, or we'd still have prohibition, slavery, and so on.
- couchand 12y ago
  I believe the term you're looking for is 'precedent'.
  - themartorana 12y ago
    Indeed. I can't edit, but good catch. I got it right in the third paragraph ;)
- daxelrod 12y ago
  This certainly does happen for court decisions [1], but part of the legitimacy of the court comes from the idea that it is consistently (and therefore fairly) interpereting law. It's also important to make a distinction between "the implications of the court's interpretation of the law are different in this new world" and "the implications of this law are different in this new world. For the latter, the legislature, not the court, should fix the law. For the former, it is still within the legeslature's power to fix the law in such a way that the previous court decision is invalidated. [1] http://www.gpo.gov/fdsys/pkg/GPO-CONAN-1992/html/GPO-CONAN-1992-13.htm http://www.gpo.gov/fdsys/pkg/GPO-CONAN-1992/html/GPO-CONAN-1...
  - john_b 12y ago
    It's a nitpick, but consistency and fairness are independent qualities in legal interpretations. As the simplest example, consistently applying an unfair ruling or precedent does not result in fairness. Only by presuming that all previous court rulings (at least those that can be used as precedents) were fair, does consistency result in fairness.
    - daxelrod 12y ago
      This is an excellent point.
- venomsnake 12y ago
  The fun part about the second amendment is the full auto weapon ban. If this is constitutional - then the same mechanism could be used to regulate other types of guns. If it is not (which current readings seem to hint at), then it should fall. I really don't get it.
  - talmand 12y ago
    As a supporter of the second amendment, I see no issues with a full-auto ban. Even though, technically, you can obtain a fully automatic weapon if you so wish. There are just a good deal of hoops you have to jump through to do so. The reason I have no issue with this is because the government also has a duty to protect the common good. If it is determined by elected officials that specific weapons are far too dangerous to a large enough group of citizenry, then there's no problem with limiting its availability. It is a difficult balancing act. The government may make it difficult to obtain permission but they cannot outright make it impossible. Which is the basis of many lawsuits against gun control laws. Also, I suppose it depends on how you interpret "arms". I define it to include weaponry we today call small arms, which range from pistols to rifles to machine guns. Which are available with an increasing level, based on lethality, of vetting before you can legally obtain said weapon. Any weapon beyond that list most likely just does not apply. This is why I think the nuclear weapon example used by gun control people is just outright silly.
    - logfromblammo 12y ago
      There is a simple fix: the government cannot possess any weapon that it denies to individuals. If you cannot own a fully-automatic firearm, the Army cannot own any. If you cannot own an air-to-air missile, the Air Force cannot own any. If you cannot own a nuclear missile sub, the Navy can't have any. This would eliminate outright bans, although regulatory restrictions that tend to favor people supported by military infrastructure would likely replace them. Perhaps you would be permitted to own and use fully-automatic rifles, but you would also be required to regularly train, register, and qualify in their use, such that it would be a surmountable and nondiscriminatory barrier to ownership, albeit one more easily passed by military employees in the regular course of their duties. There is no particular barrier currently imposed by the second amendment with respect to requiring that those who do keep and bear arms be proficient in their use. It may even be supported by the "well-regulated militia" clause. You may bear arms, but if you do, you must also be able to use them proficiently. As I interpret it, the 2nd amendment allows me to own and carry any weapon of military significance, without regard to the threat it may pose to myself and my neighbors, from a simple, throwable rock to my own multi-warhead ICBM with tunable, independently-targeted payloads. It is incredibly obvious that latter possibility is not very compatible with modern civilization. If anyone is going to have private weapons of mass destruction, I would certainly want some limitation on their use, like the "odd man" failsafe-override procedure in Andromeda Strain, where those people with ultimate control over that weapon can satisfy some simple, objective criteria that ensure its use is rational, ethical, and viewpoint-agnostic. This should allow an equal possibility for using something in an armed rebellion, or for the government to use it to suppress one. The government nuclear infrastructure already has safeguards against improper use of arms. Psychological screening, inventory controls, and authorization procedures, to name a few. If private individuals or organizations were required to implement substantially similar safeguards, no one would bother owning any, because the weapons are simply too expensive to maintain, for something that you are never likely to be able to use and still remain the good guy. If you think of the government as just a lot of regular people doing their jobs, allowing regular people to have military-grade weapons as an expensive hobby is no more threatening. A Wyoming ranch owner with a nuclear missile is not more threatening than a Wyoming silo-bunker lieutenant with a nuclear missile, if they both have to get approval from someone presumed rational before they blow anything up. The latter has his military chain of command. Perhaps the former has to call up the county sheriff for his launch codes. Donning the uniform does not somehow make a person more qualified to handle a weapon. So if something is too dangerous for an individual, it is certainly too dangerous for an individual with a specific employer with an organizational structure geared around dilution of individual responsibility.

by sinak 12y ago

themartorana 12y ago

Not that I agree or disagree, but the argument is similar to the Second Amendment argument that the framers of the Constitution couldn't imagine M-16s, let alone nuclear weapons. I understand precedence, but I don't get blind adherence to it. It's a dangerous and - dare I say, lazy - to not revisit old laws and court decisions that could not imagine the present. It's odd to me for a judge not to assume (s)he has leverage to challenge old decisions - and when one does (like challenging government assertions of state secrets) they're derided as "activist." If we find an old ruling or law still valid, then so be it. But bad (and good) precedents needs constant revisiting, or we'd still have prohibition, slavery, and so on.

couchand 12y ago
I believe the term you're looking for is 'precedent'.
- themartorana 12y ago
  Indeed. I can't edit, but good catch. I got it right in the third paragraph ;)
daxelrod 12y ago
This certainly does happen for court decisions [1], but part of the legitimacy of the court comes from the idea that it is consistently (and therefore fairly) interpereting law. It's also important to make a distinction between "the implications of the court's interpretation of the law are different in this new world" and "the implications of this law are different in this new world. For the latter, the legislature, not the court, should fix the law. For the former, it is still within the legeslature's power to fix the law in such a way that the previous court decision is invalidated. [1] http://www.gpo.gov/fdsys/pkg/GPO-CONAN-1992/html/GPO-CONAN-1992-13.htm http://www.gpo.gov/fdsys/pkg/GPO-CONAN-1992/html/GPO-CONAN-1...
- john_b 12y ago
  It's a nitpick, but consistency and fairness are independent qualities in legal interpretations. As the simplest example, consistently applying an unfair ruling or precedent does not result in fairness. Only by presuming that all previous court rulings (at least those that can be used as precedents) were fair, does consistency result in fairness.
  - daxelrod 12y ago
    This is an excellent point.
venomsnake 12y ago
The fun part about the second amendment is the full auto weapon ban. If this is constitutional - then the same mechanism could be used to regulate other types of guns. If it is not (which current readings seem to hint at), then it should fall. I really don't get it.
- talmand 12y ago
  As a supporter of the second amendment, I see no issues with a full-auto ban. Even though, technically, you can obtain a fully automatic weapon if you so wish. There are just a good deal of hoops you have to jump through to do so. The reason I have no issue with this is because the government also has a duty to protect the common good. If it is determined by elected officials that specific weapons are far too dangerous to a large enough group of citizenry, then there's no problem with limiting its availability. It is a difficult balancing act. The government may make it difficult to obtain permission but they cannot outright make it impossible. Which is the basis of many lawsuits against gun control laws. Also, I suppose it depends on how you interpret "arms". I define it to include weaponry we today call small arms, which range from pistols to rifles to machine guns. Which are available with an increasing level, based on lethality, of vetting before you can legally obtain said weapon. Any weapon beyond that list most likely just does not apply. This is why I think the nuclear weapon example used by gun control people is just outright silly.
  - logfromblammo 12y ago
    There is a simple fix: the government cannot possess any weapon that it denies to individuals. If you cannot own a fully-automatic firearm, the Army cannot own any. If you cannot own an air-to-air missile, the Air Force cannot own any. If you cannot own a nuclear missile sub, the Navy can't have any. This would eliminate outright bans, although regulatory restrictions that tend to favor people supported by military infrastructure would likely replace them. Perhaps you would be permitted to own and use fully-automatic rifles, but you would also be required to regularly train, register, and qualify in their use, such that it would be a surmountable and nondiscriminatory barrier to ownership, albeit one more easily passed by military employees in the regular course of their duties. There is no particular barrier currently imposed by the second amendment with respect to requiring that those who do keep and bear arms be proficient in their use. It may even be supported by the "well-regulated militia" clause. You may bear arms, but if you do, you must also be able to use them proficiently. As I interpret it, the 2nd amendment allows me to own and carry any weapon of military significance, without regard to the threat it may pose to myself and my neighbors, from a simple, throwable rock to my own multi-warhead ICBM with tunable, independently-targeted payloads. It is incredibly obvious that latter possibility is not very compatible with modern civilization. If anyone is going to have private weapons of mass destruction, I would certainly want some limitation on their use, like the "odd man" failsafe-override procedure in Andromeda Strain, where those people with ultimate control over that weapon can satisfy some simple, objective criteria that ensure its use is rational, ethical, and viewpoint-agnostic. This should allow an equal possibility for using something in an armed rebellion, or for the government to use it to suppress one. The government nuclear infrastructure already has safeguards against improper use of arms. Psychological screening, inventory controls, and authorization procedures, to name a few. If private individuals or organizations were required to implement substantially similar safeguards, no one would bother owning any, because the weapons are simply too expensive to maintain, for something that you are never likely to be able to use and still remain the good guy. If you think of the government as just a lot of regular people doing their jobs, allowing regular people to have military-grade weapons as an expensive hobby is no more threatening. A Wyoming ranch owner with a nuclear missile is not more threatening than a Wyoming silo-bunker lieutenant with a nuclear missile, if they both have to get approval from someone presumed rational before they blow anything up. The latter has his military chain of command. Perhaps the former has to call up the county sheriff for his launch codes. Donning the uniform does not somehow make a person more qualified to handle a weapon. So if something is too dangerous for an individual, it is certainly too dangerous for an individual with a specific employer with an organizational structure geared around dilution of individual responsibility.