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The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. -- Ninth Amendment to the Co
by ScottBurson 11y ago
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
-- Ninth Amendment to the Constitution
- tptacek 11y agoThe Third-Party Doctrine dates back to the time of the framers of the Constitution. Not merely the idea that there are third parties that have searchable documents, but the Constitutionality of the resultant searches.
- mnutt 11y agoHow does the Third-Party Doctrine date back to the framers? I'm pretty sure it wasn't coined until the 60s, but are there court cases from earlier than that?
- tptacek 11y agoI'm trying to track down the case that made me think that and starting to think I'm crazy. Still looking!
- mikecb 11y agoIt's a little weird because in '67, the court redefined the 4th around the idea of expectation of privacy (Katz), and Miller and Smith followed from that redefinition. So you might have happened across something relevant under the previous scheme, like Boyd in 1886.
- tptacek 11y agoIt was a customs search case from the turn of the 19th century, but now I'm wondering if I got my wires crossed between that and border search.
- mikecb 11y agoProbably. Border has a lot more from the original congress, and more also about customs since that was one of the original boarder exceptions.
- ScottBurson 11y agoWhether or not that turns out to be true, I still don't care for Rayiner's argument. Attorney-client privilege is also older than the Constitution, and the framers didn't see fit to mention it here either. I think their intent was to get the broad outlines right and let future generations hash out such details. In keeping with that intent, the phrase "their papers and effects" is not precisely defined. I think it's up to us to hash out the appropriate meaning for our day and age. Pace Rayiner, I don't think it's at all unreasonable to imagine that that phrase was not necessarily intended to encompass only papers and effects that happen to be within one's house.
- rayiner 11y agoAttorney-client privilege isn't a Constitutional right, it's just an evidentiary privilege. And it can be lost by disclosure to third parties. Moreover, you're glossing over the fact that much of the information held by third parties doesn't fit within any conception of "your papers and effects." Even if we assume that your Google Docs are covered, what about information like your facebook friends? Those database records linking you to other facebook users aren't your documents, they're Facebook's.
- rayiner 11y agoSure, but if the "right to privacy" doesn't come from the 4th amendment, where does it come from? The 9th amendment says that the Bill of Rights is not the only source of rights. But it is not by itself a source of rights.