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Supreme court: Warrantless cell phone searches illegal [pdf]

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Re: Supreme court: Warrantless cell phone searches illegal [pdf]

#131

Post by mpyne »

chenelson wrote: post #88
[deleted] wrote: post #71

Earlier quoted context omitted.

[deleted]

I thought the Founders were fighting against the so-called needs of law enforcement; so much so that the US literally exists because of heavy-handed governmental action. The Fourth Amendment was intended to keep the the Founders' business interests secure, and prevent, say, search and seizure of Samuel Adams' smuggled goods. This so-called "law enforcement need" is the creation of a few odd ducks such as Richard Nixo…

> The Fourth Amendment was intended to keep the the Founders' business interests secure, and prevent, say, search and seizure of Samuel Adams' smuggled goods.

The Fourth Amendment was passed after there was ever a threat to Sam Adams's goods (indeed, how they can be "smuggled" when they were fully legal under Masschusetts law?). The reason the Fourth Amendment was an Amendment and not already in the Constitution was because the Federalists (predominantly from New England) felt the Constitution already covered those rights implicitly (luckily for us, the anti-Federalists forced them to pass a bill containing specific rights).

Where Sam Adams comes into the Fourth Amendment is that the new Americans resented the old writs of assistance that gave British customs officers incredibly wide powers to search (and even seize IIRC) anything they wished. So the Fourth Amendment removed that concept completely by directing that any unreasonable search of a person or their house, papers or effects much be done under a warrant that was specific in nature.

I don't know where the libertarian meme that the colonial Americans were fighting against government or the law came from. There were many reasons they fought, but you can look at the Declaration of Independence for a good overview as to the why. But in short, they fought for their rights as Englishmen, not against the idea of law or order.

The debates that did occur about government occurred about things like the balance of power between state and national government (c.f. the Tenth Amendment), not with the idea of common law (which the new nation adopted wholesale from the U.K.) or of government (which the colonists had been practicing on their own for more than 150 years by then).

Re: Supreme court: Warrantless cell phone searches illegal [pdf]

#132

Post by Phlarp »

joering2 wrote: post #114

uhm, so local sheriffs bought stingray equipment and spent tens of thousands of dollars on equipment they well know is illegal to use, and now with this decision they will just shut it down and stop using it? Okay... While this is "good news", its nothing more than that: a news. No change at all will happen. Nothing! Your local sheriff is breaking the law. So what? Are you gonna call law enforcement to arrest him? Go…

This ruling was not specific to the use of stingray devices, those are still legal to use if they have the proper warrant. What's illegal with stingrays is lying about where the information came from on the warrant or in a trail. No surprise lying to a court will get you in trouble.

This ruling absolutely will have an impact on the relatively widespread use of those little memory dumping devices that cops love to use in routine arrests and even traffic stops in some states.

Re: Supreme court: Warrantless cell phone searches illegal [pdf]

#133

Post by wil421 »

dan_bk wrote: post #37
acangiano wrote: post #6

This passage is just beautiful: "Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to t…

Why would the same not apply to the Internet cables the NSA directly taps all over the World?

Simple answer: you don't have a resonsable expectation of privacy when you send something along the wire. This begs the question is info on the wire the same as sending a letter like generations before us did?

A cellphone is just like a briefcase 30 years ago. It has all my letters (email), work papers (files) and other personal info like an address book.

Re: Supreme court: Warrantless cell phone searches illegal [pdf]

#134

Post by malandrew »

ScottBurson wrote: post #123
malandrew wrote: post #107

Earlier quoted context omitted.

A bit off topic, but your comment did lead me to think that there may be a alternative way to curb NSA civil liberties abuses: treat it like an island. Right now, one of the biggest problems with the NSA for civil liberties is that it routinely cooperates with other domestic law enforcement agencies such as the FBI and local law enforcement. With this is mind, we may also want to consider pushing for laws that isolat…

Yes, I agree, this might be a workable solution to satisfy both civil libertarians and those who think the NSA should be permitted all the access it wants. One could even argue that the Posse Comitatus Act already mandates such a wall.

As much as I would love it if the Posse Comitatus Act addressed this, the fact that it focuses on "enforcement" by the military means it probably would be deemed as not applicable here. The NSA and CIA are providing informational support that violates numerous parts of the bill of rights, but the enforcement itself is still being carried out by the FBI, ATF, Secret Service and state and local police.

At the time Posse Comitatus was passed, I don't think anyone ever envisioned that technology would one day permit pervasive ever-present surveillance.

Are there any parts of the act that specifically attempt to curtail supporting enforcement by other means using language that could apply to information sharing techniques used in parallel construction?

Re: Supreme court: Warrantless cell phone searches illegal [pdf]

#135

Post by mpyne »

a3n wrote: post #97
gnopgnip wrote: post #89

Earlier quoted context omitted.

The government cannot legally access this picture either without a warrant.

Unless you're crossing the no-rights zone otherwise known as the border.

No, the "no rights zone" only applies to non-USPERs outside of U.S. soil. NSA might reasonably be able to claim that they didn't know a given email address used outside the U.S. actually belongs to a U.S. person, but they'd have a much harder argument claiming that a phone issued to a U.S. area code didn't reasonably belong to a U.S. person, even if used overseas.

Re: Supreme court: Warrantless cell phone searches illegal [pdf]

#136

Post by dragonwriter »

mpyne wrote: post #131
chenelson wrote: post #88

Earlier quoted context omitted.

I thought the Founders were fighting against the so-called needs of law enforcement; so much so that the US literally exists because of heavy-handed governmental action. The Fourth Amendment was intended to keep the the Founders' business interests secure, and prevent, say, search and seizure of Samuel Adams' smuggled goods. This so-called "law enforcement need" is the creation of a few odd ducks such as Richard Nixo…

> The Fourth Amendment was intended to keep the the Founders' business interests secure, and prevent, say, search and seizure of Samuel Adams' smuggled goods. The Fourth Amendment was passed after there was ever a threat to Sam Adams's goods (indeed, how they can be "smuggled" when they were fully legal under Masschusetts law?). The reason the Fourth Amendment was an Amendment and not already in the Constitution was…

> So the Fourth Amendment removed that concept completely by directing that any unreasonable search of a person or their house, papers or effects much be done under a warrant that was specific in nature.

It prohibits unreasonable searches outright (it doesn't require a warrant for unreasonable searches), and also limits warrants to certain standards. (Implicitly, it has been held to also mean that warrants are usually necessary for a search to be reasonable, since if there were no generally-applicable warrant requirement for reasonableness, the limitation on the conditions in which warrants may be issued would be meaningless.)

Re: Supreme court: Warrantless cell phone searches illegal [pdf]

#138

Post by mpyne »

malandrew wrote: post #107
jonstewart wrote: post #47

Earlier quoted context omitted.

Simple: the NSA isn't a law enforcement agency. It's not presenting evidence in court.

A bit off topic, but your comment did lead me to think that there may be a alternative way to curb NSA civil liberties abuses: treat it like an island. Right now, one of the biggest problems with the NSA for civil liberties is that it routinely cooperates with other domestic law enforcement agencies such as the FBI and local law enforcement. With this is mind, we may also want to consider pushing for laws that isolat…

It's not a bad idea; there's in theory a very weak such wall already present so it's not as if there's no precedent. And I'd certainly feel better knowing that techniques like parallel construction could be replaced with a formal mechanism under strong oversight for use in serious criminal cases, without destroying intelligence sources and methods.

Re: Supreme court: Warrantless cell phone searches illegal [pdf]

#139

Post by ScottBurson »

malandrew wrote: post #134
ScottBurson wrote: post #123

Earlier quoted context omitted.

Yes, I agree, this might be a workable solution to satisfy both civil libertarians and those who think the NSA should be permitted all the access it wants. One could even argue that the Posse Comitatus Act already mandates such a wall.

As much as I would love it if the Posse Comitatus Act addressed this, the fact that it focuses on "enforcement" by the military means it probably would be deemed as not applicable here. The NSA and CIA are providing informational support that violates numerous parts of the bill of rights, but the enforcement itself is still being carried out by the FBI, ATF, Secret Service and state and local police. At the time Poss…

I have to admit that was a stretch on my part. I was just thinking that "enforcement" could be argued to include the provision of relevant information.

But the question isn't so much whether one could make the argument as how many people would be likely to be sympathetic to such a broad reading of the act. An increasing number, perhaps...

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