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California Court of Appeal finds geofence warrant unconstitutional

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Re: California Court of Appeal finds geofence warrant unconstitutional

#41

Post by gspencley »

CobrastanJorji wrote: post #40
gspencley wrote: post #26

Earlier quoted context omitted.

> and being illegal isn't the same thing as being a crime I think in a very strict interpretation of what "lawful" and "criminal" means, this is likely true. There are civil infractions and there are "criminal offences." But most people, colloquially, equivocate "illegal" with "crime." And if the police engage in unlawful (illegal) activity, they can face penalty. So I'm not entirely sure what you're trying to say. S…

Say that a law says "No person may wear a green shirt." Now say I go outside in a green shirt. I am now violating the law. If someone pointed this out and said, "that's not legal," they would be correct. A police officer or a court could compel me to change shirt, but I would never go to prison or be fined for wearing a green shirt because the law doesn't define any sort of penalty. It's not a misdemeanor. It's not a…

I see and understand your point now. Thanks!

Re: California Court of Appeal finds geofence warrant unconstitutional

#42

Post by torstenvl »

ROTMetro wrote: post #34
torstenvl wrote: post #32

Earlier quoted context omitted.

That is plainly false, as any yahoo with a PACER account can tell you. It also continues to conflate qualified immunity as a principle (which dates back in some form to 1789 and by that name specifically to 1967) with the presumption established in Harlow in 1982, despite my clear explanation above.

As someone who went through the system you are wrong. Sure that might be a few cases ruled in your favor, but in the actual implementation of the rules as applied to those in the system you are incorrect. You are like the insurance company pointing to two cases where they approved treatment saying 'look, we don't deny treatment'.

This is adjacent to my area of expertise. I do not deal with qualified immunity every day, or even every week, but my colleagues 30 feet from me do. I feel pretty confident that I know what I'm talking about.

Re: California Court of Appeal finds geofence warrant unconstitutional

#43

Post by P_I_Staker »

mikece wrote: post #15
perihelions wrote: post #4

Found something interesting not mentioned in the article: apparently, police ransacked six innocent peoples' Google data, in the process of getting to the two guilty ones. - "Google produced a list of eight anonymized accounts that had been at two or more of the six locations at the relevant time periods. Of the eight accounts, one had been at four of the geofence locations, one at three locations and the remaining s…

From past episodes of the Privacy, Security, and OSINT Podcast (hosted by a former FBI special agent) EVERYONE returned by a geofence warrant will be listed in the investigation whether exonerated or not, which then, because of public records laws, means the data becomes public and innocent names are mixed with criminal records (and HR background check companies don't always filter out names in criminal reports who a…

I don't think those generally show up in reports, and this would be virtually impossible if you use a reputable background checking company.

Every "hit" shows on your copy of the record, and you should be able to challenge it.

Re: California Court of Appeal finds geofence warrant unconstitutional

#44

Post by singleshot_ »

torstenvl wrote: post #32
jcranmer wrote: post #28

Earlier quoted context omitted.

> Qualified immunity is the principle that a public official acting in good faith cannot be held personally liable for an action that is later determined to violate the Constitution. No reasonable person, other than a nihilist, could possibly disagree with qualified immunity. Qualified immunity is the principle that an official cannot be sued for an action that isn't clearly shown to be unconstitutional. It shuts dow…

That is plainly false, as any yahoo with a PACER account can tell you. It also continues to conflate qualified immunity as a principle (which dates back in some form to 1789 and by that name specifically to 1967) with the presumption established in Harlow in 1982, despite my clear explanation above.

Your point of view (which I admit sounds informed, so please don’t take this the wrong way) seems to be at odds with how qualified immunity is generally discussed. Typically I’ve heard it referred to as an immunity not from damages, but from the lawsuit itself. Law.Cornell.edu seems to agree with me.

Which leaves me a little confused as to what exactly you think is false. That QI is an immunity from suit? Or that there is no fact-finding prior to a QI dismissal?

As an idiot with a PACER account I think I deserve an explanation. If I promise not to argue with you, will you please explain this a little more deeply?

(And yes, I read Harlow although I admit it didn’t make me feel much smarter).

Re: California Court of Appeal finds geofence warrant unconstitutional

#45

Post by torstenvl »

singleshot_ wrote: post #44
torstenvl wrote: post #32

Earlier quoted context omitted.

That is plainly false, as any yahoo with a PACER account can tell you. It also continues to conflate qualified immunity as a principle (which dates back in some form to 1789 and by that name specifically to 1967) with the presumption established in Harlow in 1982, despite my clear explanation above.

Your point of view (which I admit sounds informed, so please don’t take this the wrong way) seems to be at odds with how qualified immunity is generally discussed. Typically I’ve heard it referred to as an immunity not from damages, but from the lawsuit itself. Law.Cornell.edu seems to agree with me. Which leaves me a little confused as to what exactly you think is false. That QI is an immunity from suit? Or that the…

You appear to be conflating a principle with its parameters. It's a category error. It's like being an early 2000s Java programmer and claiming that automatic memory management means freezing program execution at random intervals.

Under Harlow there is a presumption in favor of the official such that these suits are often dismissed at the 12(b)(6) stage. However, that is incidental. It is specific to Harlow. As such, while perhaps a valid criticism of the Harlow QI regime, it is not a valid criticism of QI; just as the valid criticism of coarse stop-the-world mark-and-sweep is nevertheless not a valid criticism of automatic memory management.

It's important to realize that the underlying principle of qualified immunity - that a person is distinct from their office - is centuries old and a fundamental bedrock of American democracy. It's why Marbury sought a writ of mandamus in the first place, rather than wringing money out of Madison. The qualified immunity regime we have now is not historically representative.

Re: California Court of Appeal finds geofence warrant unconstitutional

#46

Post by mistrial9 »

vegetablepotpie wrote: post #27
mistrial9 wrote: post #20

actually I posted here on YNews last year about San Diego-based company that was creating "fence" zones for emergency response with a geo-web site to coordinate them. Second an anecdote where a California Highway Patrol fire response officer was shown abruptly and dismissively telling the mayor of a small town that the restrictions on access "could last a year." That YNews post was met with multiple "so what" and "th…

I have not heard of the “ratchet effect”. Some research on ddg showed me the Collingridge dilemma, but that’s different because it’s about regulation of technology and not law enforcement adoption of tech. Can you point to an example?

lacking something specific to point to, I will hand-wave by saying that there are at least three different framework "lenses" to add context to these changes.. perhaps one is the "evolutionary spiral" technology-optimist view, like Kevin Kelly at WIRED; two is the "social stability" thinking apparently in that Collinridge book and others; third is the one I refer to, which is brute force politics and law over time.. probably a crude reference to that is "48 Laws of Power" by Robert Greene or some historical writing..
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