6 ms·

Why would it not be admissible?

by jellicle 11y ago

lisper 11y ago
Because it was acquired without probable cause or a warrant.
- slapshot 11y ago
  But under the (still hotly contested in the Digital Age) "third party doctrine", information held by a service provider (an ISP, a website, a hotel, a cell phone company, etc) law enforcement can request data with just a subpoena. A court may issue the subpoena if the law enforcement agency shows that the information is "relevant to an investigation" and the recipient must comply or show why the data isn't available. There doesn't have to be probable cause. Anything found can be part of the investigation -- there's no parallel construction required. [1] Today (literally, today), the Supreme Court took a first shot at narrowing the third party doctrine with respect to hotel room records in Los Angeles. [2] The ruling was largely about the procedure a hotel may use to quash (ask a court to reject) the subpoena, but it shows a willingness to cut back on the third party doctrine. The GPS tracker case also had some commentary suggesting a limit to the third party doctrine, but it was ultimately decided based on the physical intrusion of the device. [1] Alternet's very negative take on the issue: http://www.alternet.org/8-ways-police-can-spy-you-without-warrant http://www.alternet.org/8-ways-police-can-spy-you-without-wa... [2] http://www.politico.com/story/2015/06/hotel-guest-list-privacy-supreme-court-ruling-119280.html http://www.politico.com/story/2015/06/hotel-guest-list-priva...
  - _delirium 11y ago
    The third-party doctrine "proper" is about third parties voluntarily giving information to the government, which the government would otherwise have needed a warrant to get. For example, the government could effectively conduct dragnet surveillance of cell-phone records without a warrant if a mobile-phone company chooses to enter into a commercial data-selling agreement with the government: for $x/record, we'll send you all the call data. This has historically been held to just be a voluntary transaction between parties, so doesn't implicate the 4th amendment. The hotel case you mentioned doesn't seem to involve that; in this case, the hotel is opposing the request, so there's an adversarial posture between the third-party data holder and the government over handing over the data.
    - schoen 11y ago
      It's true that in Smith v. Maryland "[t]he police did not get a warrant or court order before having the pen register installed", so the original case was a voluntary disclosure in that sense. But installing pen registers isn't voluntary at all these days: https://en.wikipedia.org/wiki/Pen_register#Pen_Register_Act https://en.wikipedia.org/wiki/Pen_register#Pen_Register_Act So it's reasonable to speak of the third party doctrine being applied to compelled data disclosures, not just voluntary ones.
- rayiner 11y ago
  Probable cause and a warrant is required when there is a 4th amendment right. The anonymous poster does not have a 4th amendment right over information about his posts in the hands of a third party (in this case, Reason). Reason, of course, does have a 4th amendment right over that information. But a warrant with probable cause is not required for a grand jury subpoena, because the recipient has the opportunity to challenge the contents: http://jolt.law.harvard.edu/articles/pdf/v24/24HarvJLTech543.pdf http://jolt.law.harvard.edu/articles/pdf/v24/24HarvJLTech543...
- mapt 11y ago
  http://www.wired.com/2012/08/administrative-subpoenas/ http://www.wired.com/2012/08/administrative-subpoenas/ http://arstechnica.com/tech-policy/2015/03/feds-subpoena-reddit-in-effort-to-learn-about-users-behind-dark-web-chatter/ http://arstechnica.com/tech-policy/2015/03/feds-subpoena-red...
tptacek 11y ago
He wasn't saying it wouldn't be. He was saying that even in an abusive fishing expedition in which prosecutors believed that the evidence generated would be excluded by a semi-competent defense attorney, the prosecution still profits by generating information that helps the rest of the investigation. It was a point about game theory, not about law.

Why would it not be admissible?

lisper 11y ago

Because it was acquired without probable cause or a warrant.

slapshot 11y ago
But under the (still hotly contested in the Digital Age) "third party doctrine", information held by a service provider (an ISP, a website, a hotel, a cell phone company, etc) law enforcement can request data with just a subpoena. A court may issue the subpoena if the law enforcement agency shows that the information is "relevant to an investigation" and the recipient must comply or show why the data isn't available. There doesn't have to be probable cause. Anything found can be part of the investigation -- there's no parallel construction required. [1] Today (literally, today), the Supreme Court took a first shot at narrowing the third party doctrine with respect to hotel room records in Los Angeles. [2] The ruling was largely about the procedure a hotel may use to quash (ask a court to reject) the subpoena, but it shows a willingness to cut back on the third party doctrine. The GPS tracker case also had some commentary suggesting a limit to the third party doctrine, but it was ultimately decided based on the physical intrusion of the device. [1] Alternet's very negative take on the issue: http://www.alternet.org/8-ways-police-can-spy-you-without-warrant http://www.alternet.org/8-ways-police-can-spy-you-without-wa... [2] http://www.politico.com/story/2015/06/hotel-guest-list-privacy-supreme-court-ruling-119280.html http://www.politico.com/story/2015/06/hotel-guest-list-priva...
- _delirium 11y ago
  The third-party doctrine "proper" is about third parties voluntarily giving information to the government, which the government would otherwise have needed a warrant to get. For example, the government could effectively conduct dragnet surveillance of cell-phone records without a warrant if a mobile-phone company chooses to enter into a commercial data-selling agreement with the government: for $x/record, we'll send you all the call data. This has historically been held to just be a voluntary transaction between parties, so doesn't implicate the 4th amendment. The hotel case you mentioned doesn't seem to involve that; in this case, the hotel is opposing the request, so there's an adversarial posture between the third-party data holder and the government over handing over the data.
  - schoen 11y ago
    It's true that in Smith v. Maryland "[t]he police did not get a warrant or court order before having the pen register installed", so the original case was a voluntary disclosure in that sense. But installing pen registers isn't voluntary at all these days: https://en.wikipedia.org/wiki/Pen_register#Pen_Register_Act https://en.wikipedia.org/wiki/Pen_register#Pen_Register_Act So it's reasonable to speak of the third party doctrine being applied to compelled data disclosures, not just voluntary ones.
rayiner 11y ago
Probable cause and a warrant is required when there is a 4th amendment right. The anonymous poster does not have a 4th amendment right over information about his posts in the hands of a third party (in this case, Reason). Reason, of course, does have a 4th amendment right over that information. But a warrant with probable cause is not required for a grand jury subpoena, because the recipient has the opportunity to challenge the contents: http://jolt.law.harvard.edu/articles/pdf/v24/24HarvJLTech543.pdf http://jolt.law.harvard.edu/articles/pdf/v24/24HarvJLTech543...
mapt 11y ago
http://www.wired.com/2012/08/administrative-subpoenas/ http://www.wired.com/2012/08/administrative-subpoenas/ http://arstechnica.com/tech-policy/2015/03/feds-subpoena-reddit-in-effort-to-learn-about-users-behind-dark-web-chatter/ http://arstechnica.com/tech-policy/2015/03/feds-subpoena-red...

tptacek 11y ago

He wasn't saying it wouldn't be. He was saying that even in an abusive fishing expedition in which prosecutors believed that the evidence generated would be excluded by a semi-competent defense attorney, the prosecution still profits by generating information that helps the rest of the investigation. It was a point about game theory, not about law.