Court Rejects Warrantless GPS Tracking

[ElNono]

Court Rejects Warrantless GPS Tracking (http://www.eff.org/press/archives/2010/08/06-0)

EFF-ACLU Arguments Against Always-On Surveillance Win The Day
Washington, D.C. - The U.S. Court of Appeals for the District of Columbia Circuit today firmly rejected government claims that federal agents have an unfettered right to install Global Positioning System (GPS) location-tracking devices on anyone's car without a search warrant.

In United States v. Maynard, FBI agents planted a GPS device on a car while it was on private property and then used it to track the position of the automobile every ten seconds for a full month, all without securing a search warrant. In an amicus brief filed in the case, EFF and the ACLU of the Nation's Capital argued that unsupervised use of such tactics would open the door for police to abuse their power and continuously track anyone's physical location for any reason, without ever having to go to a judge to prove the surveillance is justified.

The court agreed that such round-the-clock surveillance required a search warrant based on probable cause. The court expressly rejected the government's argument that such extended, 24-hours-per-day surveillance without warrants was constitutional based on previous rulings about limited, point-to-point surveillance of public activities using radio-based tracking beepers. Recognizing that the Supreme Court had never considered location tracking of such length and scope, the court noted: "When it comes to privacy...the whole may be more revealing than its parts."

The court continued: "It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person's hitherto private routine."

"The court correctly recognized the important differences between limited surveillance of public activities possible through visual surveillance or traditional 'bumper beepers,' and the sort of extended, invasive, pervasive, always-on tracking that GPS devices allow," said EFF Civil Liberties Director Jennifer Granick. "This same logic applies in cases of cell phone tracking, and we hope that this decision will be followed by courts that are currently grappling with the question of whether the government must obtain a warrant before using your cell phone as a tracking device."

"GPS tracking enables the police to know when you visit your doctor, your lawyer, your church, or your lover," said Arthur Spitzer, Legal Director of the ACLU-NCA. "And if many people are tracked, GPS data will show when and where they cross paths. Judicial supervision of this powerful technology is essential if we are to preserve individual liberty. Today's decision helps brings the Fourth Amendment into the 21st Century."

Attorneys Daniel Prywes and Kip Wainscott of Bryan Cave LLP also volunteered their services to assist in preparing the EFF-ACLU brief.

For the full opinion:
http://www.eff.org/files/filenode/US_v_Jones/maynard_decision.pdf

For more information on the case, formerly known as U.S. v. Jones:
http://www.eff.org/cases/us-v-jones

[MannyIsGod]

Fucking ACLU.

[Marcus Bryant]

Well, of course.

[LnGrrrR]

If only the car dealer had included a clause saying, "You agree to have a GPS installed and be monitored at any time", this whole ordeal would have been kosher.

[Winehole23]

Proleptic, LNGR.

That's WC's line.

[Winehole23]

In principle, he's right. Anyone can choose to limit his rights contractually.

[Parker2112]

Sometimes the last line is the courts. Scary shit.

And I used to think the ACLU was douchey.

[ChuckD]

Was it a GM model? Did Ed Whitacre roll over again?

[MannyIsGod]

Everyone thinks the ACLU is douchey because ultimately the ACLU pisses everyone off because they actually keep a very cohesive viewpoint on things. They don't bend for your morality or my morality.

I like that.

[Parker2112]

Everyone thinks the ACLU is douchey because ultimately the ACLU pisses everyone off because they actually keep a very cohesive viewpoint on things. They don't bend for your morality or my morality.

I like that.

Good point.

[LnGrrrR]

In principle, he's right. Anyone can choose to limit his rights contractually.

Depends on the right. For instance, you can't sell yourself into slavery. Pretty much, you can't agree to a contract that runs contra to the Constitution, because that contract would be ipso facto unconstitutional.

[LnGrrrR]

Everyone thinks the ACLU is douchey because ultimately the ACLU pisses everyone off because they actually keep a very cohesive viewpoint on things. They don't bend for your morality or my morality.

I like that.

Yup. I'm a member of the ACLU. But I guess defending liberty is now "lefty".

[Wild Cobra]

I've been wondering what's been going on since my last Android software update. My battery only lasts two days instead of four now with my normal light usage. I wonder if Google is tracking everyone daily movement with the built in GPS.

[ElNono]

Cellphone tracking is done without the built-in GPS. Cell tower triangulation works pretty well even if it's not as precise, and doesn't really require to drain your cellphone battery or activate anything on it.

It's well known LE has had direct access to cellphone carrier provided web portals to get that info. I've seen dumps and screenshots from the service Sprint provides for that.

I'm sure that's what they're going to go after next.

[Wild Cobra]

Cellphone tracking is done without the built-in GPS. Cell tower triangulation works pretty well even if it's not as precise, and doesn't really require to drain your cellphone battery or activate anything on it.

Yes, I know. I had told people such tracking could be done before I ever heard they were doing it. However, actually using the cell phone can give audio and video also. maybe some of my posts here and elsewhere have the authoritarians in government worried... I doubt it, but I do keep an open mind.

Seriously. Like night and day from the last update. My batter never lasts more than two days now.

Anyone else?


It's well known LE has had direct access to cellphone carrier provided web portals to get that info. I've seen dumps and screenshots from the service Sprint provides for that.

I'm sure that's what they're going to go after next.

I haven't asked for an explanation, but it wouldn't surprise me is someone stuck in an app on the latest download. Maybe the New World Obama Order. I keep forgetting to check with T-Mobile for a reason.

[ElNono]

Yes, I know. I had told people such tracking could be done before I ever heard they were doing it.

It is being done.


I haven't asked for an explanation, but it wouldn't surprise me is someone stuck in an app on the latest download. Maybe the New World Obama Order. I keep forgetting to check with T-Mobile for a reason.

Well, at least as far as the iPhone is concerned, you have to specifically allow location services on a per app basis, including the system ones. I like how they handled that privacy setting on it. You also always have an icon indicating an app is tracking locations when it's on.

Then again, as I said, you could have it off and the cellphone carrier can still track you simply by looking at which cell towers your phone checks into.

[ElNono]

You can do audio from the cell tower also...

[ElNono]

Obviously, as you can use the 'locate my phone' feature, I'm sure so can LE.

Eventually, if you're so concerned, simply get a phone without a GPS...

[ElNono]

I'm just surprised that you're suddenly so worried about the government listening into your conversations, when you dismissed it as a non-issue in the previous administration :rolleyes

[Wild Cobra]

It is being done.



Well, at least as far as the iPhone is concerned, you have to specifically allow location services on a per app basis, including the system ones. I like how they handled that privacy setting on it. You also always have an icon indicating an app is tracking locations when it's on.

Then again, as I said, you could have it off and the cellphone carrier can still track you simply by looking at which cell towers your phone checks into.
None of that explains the day and night difference on batter drain, unless an app is operating and using more power. I checked my setting, they are all the same.

[ElNono]

None of that explains the day and night difference on batter drain, unless an app is operating and using more power. I checked my setting, they are all the same.

I'm an iPhone user, so I couldn't tell you. My iPhone battery life only gets better, not worse.

[Wild Cobra]

I'm just surprised that you're suddenly so worried about the government listening into your conversations, when you dismissed it as a non-issue in the previous administration :rolleyes
I'm open to ideas. I know this administration has no care about human rights like they claim also. They are smug and arrogant, and thinks everyone needs them. Their actions indicate they want to cripple those who don't need them.

[ElNono]

I'm open to ideas. I know this administration has no care about human rights like they claim also. They are smug and arrogant, and thinks everyone needs them. Their actions indicate they want to cripple those who don't need them.

What are you babbling about now? I can't make head or tails of what you wrote there.

[Wild Cobra]

What are you babbling about now? I can't make head or tails of what you wrote there.

LOL...

Do you really think they are better than the last administration, especially with the Chicago style politics?

[Wild Cobra]

Getting off topic a little, and using generalization of appearance. The democrats appear to cater to the needy. Republicans appear to cater to business. One needs more poor voters to need them, the other needs more rich voters to appreciate them.

Add these factors into my words for reference, and consider how the legislation of each side tends to move the mix.

[Nbadan]

One needs more poor voters to need them, the other needs more rich voters to appreciate them.

Or,

One needs more rich voters to need them, the other needs more poor voters to appreciate them....

[DMX7]

Getting off topic a little, and using generalization of appearance. The democrats appear to cater to the needy. Republicans appear to cater to business. One needs more poor voters to need them, the other needs more rich voters to appreciate them.

Add these factors into my words for reference, and consider how the legislation of each side tends to move the mix.

Republicans don't need more rich voters to appreciate them, they just need the cumulative political influence of their rich constituency to outweigh that of the democrats'.

Unfortunately (or maybe not), the wealthiest democrats (Warren Buffet, Bill Gates) aren't pathetic lowlifes who fund political lies like the swift boat campaigns or the health care "death panel" drool.

Republicans are masters at playing fools like you with fear. Oh no, the economy is falling apart because fear of democrats killed it! :lmao

[ElNono]

Do you really think they are better than the last administration, especially with the Chicago style politics?

As far as civil liberties I think they're just as bad. Which is pretty terrible.

[LnGrrrR]

WC, you're fine with the government reading your email, right? If so, why do you care if they can track you too?

[Wild Cobra]

WC, you're fine with the government reading your email, right? If so, why do you care if they can track you too?
I'm not fine with it, but with probable cause, it's constitutional.

Have my arguments ever indicated otherwise?

[ElNono]

I'm not fine with it, but with probable cause, it's constitutional.

You mean with probable cause it's constitutional to request a warrant...or?

[Wild Cobra]

You mean with probable cause it's constitutional to request a warrant...or?
Probable cause does not require a warrant to take action. A warrant however requires probable cause.

[LnGrrrR]

I'm not fine with it, but with probable cause, it's constitutional.

Have my arguments ever indicated otherwise?

Considering that they just use keywords to search for emails, and then read them, how would you determine probably cause? Is merely using a word that is one of the ones they're looking for probably cause enough?

Can I also assume you're fine with GPS tracking, assuming there's probable cause? Because, of course, no one would ever abuse such a power.

[Blake]

Probable cause does not require a warrant to take action.

What kind of action?

putting a GPS tracker on a car sitting on private property type of action?

[ElNono]

Probable cause does not require a warrant to take action. A warrant however requires probable cause.

Define 'action'? There are different constitutional standards for 'probable cause' when it comes to arrest vs search.

[Wild Cobra]

Considering that they just use keywords to search for emails, and then read them, how would you determine probably cause? Is merely using a word that is one of the ones they're looking for probably cause enough?
I agree that method is at best, a gray area. However, I am more concerned about the losses of constitutional rights that the left insists on.

Can I also assume you're fine with GPS tracking, assuming there's probable cause? Because, of course, no one would ever abuse such a power.

I have made such positions clear. Did you forget, or are you being an ass?

I have no problems with such uses if there is probable cause. I simply fear that the people who have access to the technology will illegally abuse it, like in the movie Enemy of the State.

[Wild Cobra]

What kind of action?

putting a GPS tracker on a car sitting on private property type of action?
Do you seriously not know my answer?

[Blake]

Do you seriously not know my answer?

No. I'm asking for clarification on this statement:


Probable cause does not require a warrant to take action.

What action are you referring to specifically?

[Wild Cobra]

No. I'm asking for clarification on this statement:[/URL]
If there is probable cause, and it's an agency given directive to do such under particular circumstances, then I don't see it as illegal at all. Regular law enforcements, with established precedent, cannot do such actions without a warrant. Agencies part of the executive branch, or delegated authority by the executive branch can.

I have explained this concept several time, and it baffles me that people cannot remember.
[QUOTE=Blake]What action are you referring to specifically?
I'm speaking of the legal realities and definitions of the words in the constitution.

Officers act all the time with probable cause in some types of cases, without a warrant. A warrant is a judicial order, rather than permission to take action. It is often used more than necessary because of precedent set.

[Wild Cobra]

Define 'action'? There are different constitutional standards for 'probable cause' when it comes to arrest vs search.
The constitution doesn't define that. Sometimes it's a gray area. In some areas, it is defined by law, or judicial precinct. But then, you know that Chump.

[MannyIsGod]

What baffles me is that instead of a simple answer you spend two posts explaining how baffled you are that no one can remember. Would it not just be simpler to answer?

[Wild Cobra]

What baffles me is that instead of a simple answer you spend two posts explaining how baffled you are that no one can remember. Would it not just be simpler to answer?
I gave my answer. Sorry you are too dumb to comprehend. I don't know how to stoop to your level of understanding, without resorting to a 3,000+ word thesis.

[LnGrrrR]

I agree that method is at best, a gray area. However, I am more concerned about the losses of constitutional rights that the left insists on.

I have made such positions clear. Did you forget, or are you being an ass?

I have no problems with such uses if there is probable cause. I simply fear that the people who have access to the technology will illegally abuse it, like in the movie Enemy of the State.

Might it not be better, given the potential for abuse, if they disallowed the technology? You often claim that government can lead to no good in many areas, and thereby, we should keep it as small as possible. Wouldn't that logically entail giving them as few powers to abuse as possible as well?

After all, if your belief is that government officials tend to corrupt, why even give them the possibility?

[MannyIsGod]

I gave my answer. Sorry you are too dumb to comprehend. I don't know how to stoop to your level of understanding, without resorting to a 3,000+ word thesis.

3 posts avoiding the simple question.

This is your favorite tactic. You could end everything by simply answering but instead you avoid avoid avoid.

[Wild Cobra]

Might it not be better, given the potential for abuse, if they disallowed the technology? You often claim that government can lead to no good in many areas, and thereby, we should keep it as small as possible. Wouldn't that logically entail giving them as few powers to abuse as possible as well?

After all, if your belief is that government officials tend to corrupt, why even give them the possibility?
believe it or not, I agree with you. I don't consider myself knowledgeable enough to decide where such dividing lines should be. Inaction can be worse than action. Our president is expected to keep this nation safe. You cannot expect him to ignore that job because some feel it steps on the constitution. As long as they stay within clear constitutional bounds, I will point that out, even when I disagree with the necessity.

[Wild Cobra]

3 posts avoiding the simple question.

This is your favorite tactic. You could end everything by simply answering but instead you avoid avoid avoid.
Then repeat the question. I must be thinking you want something else.

[ElNono]

Agencies part of the executive branch, or delegated authority by the executive branch can.

I disagree with this view on executive power. That said, if you do view it that way, why is it that when this executive does it it's bad/negative/wrong, but when the previous executive did exactly the same thing, it was good/positive/right?

[Wild Cobra]

I disagree with this view on executive power. That said, if you do view it that way, why is it that when this executive does it it's bad/negative/wrong, but when the previous executive did exactly the same thing, it was good/positive/right?
Which example are you referring to? I know I have said he does unconstitutional things, but I'm pretty sure I stayed withing the guidelines I've given.

[ElNono]

Which example are you referring to? I know I have said he does unconstitutional things, but I'm pretty sure I stayed withing the guidelines I've given.

Well, wiretapping all types of communications, including email, was done by both administrations. You showed your displeasure only with this one.

[Wild Cobra]

Well, wiretapping all types of communications, including email, was done by both administrations. You showed your displeasure only with this one.
Yes, the added method for emails. Your point?

[ElNono]

Yes, the added method for emails.

What 'added methods'? Mass wiretapping of email communications has been enabled since the Patriot Act was enacted.

[LnGrrrR]

believe it or not, I agree with you. I don't consider myself knowledgeable enough to decide where such dividing lines should be. Inaction can be worse than action. Our president is expected to keep this nation safe. You cannot expect him to ignore that job because some feel it steps on the constitution. As long as they stay within clear constitutional bounds, I will point that out, even when I disagree with the necessity.

Surely there are some limits though. For instance, it might be constitutional to have a videocamera pointed at the front of your home, from the street. Does that mean it's something we should allow our government to do?

Our government has been able to track down people before GPS, so why risk a number of civil liberty abuses by allowing it now?

[Wild Cobra]

Surely there are some limits though. For instance, it might be constitutional to have a videocamera pointed at the front of your home, from the street. Does that mean it's something we should allow our government to do?
First of all, lets distinguish between what the executive branch can do vs. federal, state, and local. Congress does not control executive decision, but makes laws for the others.

I may be wrong, but such a fixed camera like that would be illegal.

What do you want from me? I would like to see no surveillance, wiretapping, etc. I Do recognize the need of some of this.

Our government has been able to track down people before GPS, so why risk a number of civil liberty abuses by allowing it now?
They still used trackers. Just older technology. GPS trackers are just more efficient and reliable.

[Marcus Bryant]

Red light traffic cameras are a much more efficient means of enforcing traffic laws at traffic lights (and increases the amount of revenue a municipality receives). Does that mean it's a good idea? Is the use of such surveillance technology consistent with the American tradition, in particular, the spirit of the Declaration and Constitution? Granted, in no part of those documents is an official opinion specifically given as to red light traffic cameras.

As for GPS tracking, unless there's a court order, to hell with that. And we give a bit too much credence to the existence of a court order when it comes to infringements on our liberty. How much would it take to get a warrant to track someone because the target might be dealing in drugs according to a statement by an agent of the state?

Again, I note the self proclaimed libertine cheering on and defending some rather noxious practices of the state.

[Marcus Bryant]

I Do recognize the need of some of this.


Of course there's always such a "need" in a society in which everyone is a criminal.

[Wild Cobra]

Of course there's always such a "need" in a society in which everyone is a criminal.
Come on now, you know better. At least I hope so.

When it comes to terrorism, life and death, a declared Jihad against us, I am willing to accept the things our government does within "reasonable proof" or the fourth amendment.

The question should be, why aren't you?

[Blake]

Officers act all the time with probable cause in some types of cases, without a warrant. A warrant is a judicial order, rather than permission to take action. It is often used more than necessary because of precedent set.

Please give some examples of officers acting on probable cause without a warrant.

[Marcus Bryant]

Come on now, you know better. At least I hope so.

When it comes to terrorism, life and death, a declared Jihad against us, I am willing to accept the things our government does within "reasonable proof" or the fourth amendment.

The question should be, why aren't you?

Ah yes, the terrorist bogeyman that magically changes the Constitution. They hate us because we're free, so let's cease being free and maybe they'll go away.

[Wild Cobra]

Ah yes, the terrorist bogeyman that magically changes the Constitution. They hate us because we're free, so let's cease being free and maybe they'll go away.
Doesn't change it at all. I'm sorry if you don't understand that.

[Blake]

Red light traffic cameras are a much more efficient means of enforcing traffic laws at traffic lights (and increases the amount of revenue a municipality receives). Does that mean it's a good idea? Is the use of such surveillance technology consistent with the American tradition, in particular, the spirit of the Declaration and Constitution? Granted, in no part of those documents is an official opinion specifically given as to red light traffic cameras.

I don't really have a problem with red light cameras or any other big brother cameras from a constitutional standpoint, as long as they remain pointed in a manner as if looking from public view.

[Wild Cobra]

Please give some examples of officers acting on probable cause without a warrant.
You're joking, right?

I take it by your view, the police would need a warrant to make an arrest.

Think about that for a moment, before continuing to look the fool.

[ElNono]

Red light traffic cameras are of dubious constitutional legality to begin with. It's been argued successfully in a plethora of states that they violate the confrontational clause of the sixth amendment.

[LnGrrrR]

First of all, lets distinguish between what the executive branch can do vs. federal, state, and local. Congress does not control executive decision, but makes laws for the others.

I may be wrong, but such a fixed camera like that would be illegal.


What would be illegal about it, assuming it was placed in a public place and not your property?

Considering that the gov't can read your private emails without warrants, why shouldn't they be able to see when you leave your home as well? Surely they'd only start looking when there was suspicious activity.

[ElNono]

You're joking, right?
I take it by your view, the police would need a warrant to make an arrest.
Think about that for a moment, before continuing to look the fool.

Conversely, why would the police request warrants to a judge to make arrests?
Think about that for a moment, before continuing to look the fool.

[Wild Cobra]

What would be illegal about it, assuming it was placed in a public place and not your property?
I'm reasonable sure that law prevents a f8ixed camera on residential property that sees doors and windows. I could be wrong on that though.

Considering that the gov't can read your private emails without warrants, why shouldn't they be able to see when you leave your home as well? Surely they'd only start looking when there was suspicious activity.
They should only be able to read them with probable cause, which would require a sufficient chain to get to yours or my emails.

Do you believe that probable cause an a warrant go hand in hand?

like I said before, a warrant requires probable cause. probable cause does not require a warrant. There is a large undefined gray area as to what probable cause is. Impossible to discuss that with people who believe in warrant only searches. Therefor, we seem to be at a standstill.

[ElNono]

Ah yes, the terrorist bogeyman that magically changes the Constitution. They hate us because we're free, so let's cease being free and maybe they'll go away.

Basically.

The validity of the Constitution is entirely dependent on the supposed contemporary threat. A 'constitutional conservative' indeed.

[ElNono]

They should only be able to read them with probable cause, which would require a sufficient chain to get to yours or my emails.

There's no need for probable cause since the Patriot Act was enacted. Emails were deemed as database records previously, which only required a subpoena.

[Wild Cobra]

Basically.

The validity of the Constitution is entirely dependent on the supposed contemporary threat. A 'constitutional conservative' indeed.
The constitution does not change, without an amendment.

Nice ploy, but inaccurate.

[Wild Cobra]

There's no need for probable cause since the Patriot Act was enacted. Emails were deemed as database records previously, which only required a subpoena.
When you get serious about the topic, let us know.

[ElNono]

The constitution does not change, without an amendment.

Nice ploy, but inaccurate.


Come on now, you know better. At least I hope so.

When it comes to terrorism, life and death, a declared Jihad against us, I am willing to accept the things our government does within "reasonable proof" or the fourth amendment.

The question should be, why aren't you?

Does not compute. You seem to change your mind how far the 4th amendment goes depending on the existence of 'terrorism, life and death, a declared Jihad against us' or not.

[ElNono]

When you get serious about the topic, let us know.

I am serious. Perhaps you're merely misinformed.

[ElNono]

In the United States, privacy of correspondence is derived from the Fourth Amendment to the United States Constitution and thus restricted by the requirement for a "reasonable expectation of privacy".

After 180 days in the U.S., email messages lose their status as a protected communication under the Electronic Communications Privacy Act, and become just another database record. This means that a subpoena instead of a warrant is all that's needed to force email providers such as Google's Gmail to produce a copy.

Since the Patriot Act was passed, it's unclear whether this ECPA protection is worth much anymore in the U.S., or whether it even applies to email that originates from non-citizens in other countries.

E-Mail Privacy (http://en.wikipedia.org/wiki/E-mail_privacy)

[Wild Cobra]

Does not compute. You seem to change your mind how far the 4th amendment goes depending on the existence of 'terrorism, life and death, a declared Jihad against us' or not.
I don't know what part you don't understand.

Remember, I claim the executive branch only needs to comply with the constitution. Lower authorities need to comply with federal law also.

[ElNono]

I don't know what part you don't understand.

Remember, I claim the executive branch only needs to comply with the constitution. Lower authorities need to comply with federal law also.

Last I checked, the 4th amendment is part of the constitution.

[Wild Cobra]

After 180 days in the U.S., email messages lose their status as a protected communication under the Electronic Communications Privacy Act, and become just another database record. This means that a subpoena instead of a warrant is all that's needed to force email providers such as Google's Gmail to produce a copy.
Your point?

Still need to have probable cause for that subpoena, right?

Care to fill us all in ate why a warrant is OK, but not a subpoena? Congress sets the laws, right? Congress in this case may be authorizing a government agency to act in that judicial capacity, which they have a constitutional right to do. Or am I wrong?

[ElNono]

Your point?

Still need to have probable cause for that subpoena, right?

Care to fill us all in ate why a warrant is OK, but not a subpoena? Congress sets the laws, right? Congress in this case may be authorizing a government agency to act in that judicial capacity, which they have a constitutional right to do. Or am I wrong?

Yes you are. You skipped over:

Since the Patriot Act was passed, it's unclear whether this ECPA protection is worth much anymore in the U.S., or whether it even applies to email that originates from non-citizens in other countries.

Did you skip that part on purpose?

[ElNono]

And Congress can set the laws, but it can't break the constitution in doing so. That's why laws are declared unconstitutional in part or in whole all the time.

[ElNono]

Last, but not least, you do think we should interpret the constitution differently depending on the contemporary boogeyman... or you're going to back track on that too?

[Wild Cobra]

Last I checked, the 4th amendment is part of the constitution.
So why don't you understand it?

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
You assume a warrant is required. I know better. If a warrant was required, then arrests without warrant would violate the premise that we are secure in our person.

Does "reasonable" mean anything to you are not?

Is it reasonable to arrest a bank robber with a weapon pointed at a teller without warrant or not?

[Wild Cobra]

Yes you are. You skipped over:

Since the Patriot Act was passed, it's unclear whether this ECPA protection is worth much anymore in the U.S., or whether it even applies to email that originates from non-citizens in other countries.

Did you skip that part on purpose?
Why does it matter?

Congress sets the laws, right? Does it violate the reasonable/unreasonable line?

[Wild Cobra]

And Congress can set the laws, but it can't break the constitution in doing so. That's why laws are declared unconstitutional in part or in whole all the time.
No shit Sherlock. I agree, but don't see any examples from you.

[Wild Cobra]

And Congress can set the laws, but it can't break the constitution in doing so. That's why laws are declared unconstitutional in part or in whole all the time.
Now I agree that congress violates the constitution, especially this congress. look at the parts of campaign fiance reform struck down, the the new law that will also be struck down. I don't see that with your flaky email examples.

When I first agreed it was wrong, was about the data mining being a gray area. Tools are being used to search for key phrases rather than individuals, and I don't know if that is constitutionally legal or not. I would say if the provider is not compelled, but gives the information by choice, then it is likely legal depending on the service provider contract for third party dissemination.

[Wild Cobra]

Last, but not least, you do think we should interpret the constitution differently depending on the contemporary boogeyman... or you're going to back track on that too?
Not at all. My point is that the constitution is written as it is for those boogymen.

[ElNono]

So why don't you understand it?

I understand it. The executive is not above the constitution, including the 4th amendment. Which makes mass wiretapping of communications or emails unconstitutional and illegal.

The question is why you pretend like you don't get it if you do?
Why do you feel the urge to apologize for them?


You assume a warrant is required. I know better. If a warrant was required, then arrests without warrant would violate the premise that we are secure in our person.

Does "reasonable" mean anything to you are not?

Is it reasonable to arrest a bank robber with a weapon pointed at a teller without warrant or not?

I'm not confused at all. You're simply uneducated in the standards of probable cause when it comes to arrests vs searches.

Are you even aware that the 'probable' in 'probable cause' has nothing to do with probability?

What's similar between a point-and-gun scenario vs mass surveillance of emails?

And if the probable cause standard you spouse for arrests would be as loose as you claim, why do the police force go constantly to judges to request arrest warrants? They shouldn't need to, right? If you don't know, then you have a lot to read up on.

[ElNono]

No shit Sherlock. I agree, but don't see any examples from you.

I wonder who started this thread and what is it about... hmmm...

[ElNono]

Not at all. My point is that the constitution is written as it is for those boogymen.

So you do think it's meaning should change based on such boogeyman.

It's ok, we know... you can say it.

[Marcus Bryant]

Though I do agree that there are some who are uncomfortable with the degree of personal liberty in the West, wish that it would end, and are willing and able to recruit some dolts into conducting murderous attacks against the West. Of course, perhaps a way to take a stand for Western civilization would be to allow an Islamic mosque or community center, whatever, to be built a block or two from the former site of the World Trade. Perhaps it would also be to not create a mammoth surveillance state and scrap the constitution in the pursuit of total security. This would be a way to channel whatever angst one feels about these stone age terrorists (ie actually living free), instead of seeing a terrorist behind every bush and giving the state the power to sodomize you at will.

[z0sa]

To the OP: Thank. Fucking. Christ. Had something like this passed our judicial checks, it wouldn't be long before Big Brother-Government is installing cameras in your fucking house.

[ElNono]

Now I agree that congress violates the constitution, especially this congress. look at the parts of campaign fiance reform struck down, the the new law that will also be struck down. I don't see that with your flaky email examples.

When I first agreed it was wrong, was about the data mining being a gray area. Tools are being used to search for key phrases rather than individuals, and I don't know if that is constitutionally legal or not. I would say if the provider is not compelled, but gives the information by choice, then it is likely legal depending on the service provider contract for third party dissemination.

You sure have an opinion for not knowing jackshit about it.

[Spurminator]

Is it reasonable to arrest a bank robber with a weapon pointed at a teller without warrant or not?

They must not teach analogies at the Rupert Murdoch School for Conservatives.

[Wild Cobra]

I understand it. The executive is not above the constitution, including the 4th amendment. Which makes mass wiretapping of communications or emails unconstitutional and illegal.
And I agree mass wiretapping is probable illegal. Just when did that start anyway?

The question is why you pretend like you don't get it if you do?
Why do you keep spinning my words incorrectly?

Why do you feel the urge to apologize for them?
Not appology, but pointing out facts.

Should I walk away if a see a heart attack victim, or help, maybe call 911?

Should I not point out the truth when people lie?

Granted, one is more serious than the other. I just hate liars.

I'm not confused at all. You're simply uneducated in the standards of probable cause when it comes to arrests vs searches.
No. You are applying federal, state, and local restrictions to the executive branch. Lower laws cannot supersede the executive branch constitutional powers.

Are you even aware that the 'probable' in 'probable cause' has nothing to do with probability?
Duh...

What's similar between a point-and-gun scenario vs mass surveillance of emails?
OK Chump. Would you stop acting as if I disagree with that aspect?

And if the probable cause standard you spouse for arrests would be as loose as you claim, why do the police force go constantly to judges to request arrest warrants? They shouldn't need to, right? If you don't know, then you have a lot to read up on.
My God Chump. I'm tired of your stupidity.

Again....

Federal, state, and local requirements are not required of the executive branch.

[Marcus Bryant]

The scary thing is that our children's grandchildren will probably be sold greater encroachments on their constitutional rights by waving the bloody shirt of 9/11 (provided that there is even a pretense the constitution exists then).

[Wild Cobra]

I wonder who started this thread and what is it about... hmmm...
I suggest you start with my first posting on this thread and see how it digressed.

Not all my remarks are to the OP theme.

You know that, don't you Chump?

[Wild Cobra]

So you do think it's meaning should change based on such boogeyman.

It's ok, we know... you can say it.

My God.

You do a great interpretation of Chump.

The meaning does not change of the constitution. Period. I'm sorry you don't understand the nuances, and the additions congress has placed on the basic constitutional law. I cannot get though to you if you remain closed minded on that.

[Wild Cobra]

You sure have an opinion for not knowing jackshit about it.
My opinion is the premise of the OP is illegal. I'm just not sure.

[Wild Cobra]

They must not teach analogies at the Rupert Murdoch School for Conservatives.
Do I have a valid point, or not?

[CosmicCowboy]

The scary thing is that our children's grandchildren will probably be sold greater encroachments on their constitutional rights by waving the bloody shirt of 9/11 (provided that there is even a pretense the constitution exists then).

Oh, I think by that time they will probably have multiple newer examples to cite.

We are dealing with a very resourceful adversary that has multiple ways to hit us.

Airport Security Harassment is the Maginot Line of Homeland Security.

[Spurminator]

Do I have a valid point, or not?

No, you don't.

[Wild Cobra]

Here is my first posting when i actually addressed the OP:



Can I also assume you're fine with GPS tracking, assuming there's probable cause? Because, of course, no one would ever abuse such a power.

I have made such positions clear. Did you forget, or are you being an ass?

I have no problems with such uses if there is probable cause. I simply fear that the people who have access to the technology will illegally abuse it, like in the movie Enemy of the State.
Now what I didn't say is that if this was done by the executive branch, it would be legal. However, without expressed law by congress allowing the FBI to set their own probable cause requirements, or probable cause spelled out by congress, then this does violate other laws that do exist.

[Wild Cobra]

No, you don't.
What?

Are you saying a warrant is required before a policeman can arrest a bank robber in the commission of a crime?

Wow...

What planet are you from?

[Marcus Bryant]

If it's inevitable, then go on living your life until it comes. There is far too much emphasis on removing risk from life in these United States as it is.

[Marcus Bryant]

What?

Are you saying a warrant is required before a policeman can arrest a bank robber in the commission of a crime?

Wow...

What planet are you from?

Obviously the police should be able to tag any swarthy looking ferriner's vehicle with a GPS unit because they could be a terrorist, drug dealer, or a Democrat.

[Wild Cobra]

Obviously the police should be able to tag any swarthy looking ferriner's vehicle with a GPS unit because they could be a terrorist, drug dealer, or a Democrat.
If you say so, but I would disagree.

[Marcus Bryant]

We, the inheritors of this magnificent governing arrangement, have done our damnedest to piss it away. As long as a mass of the population can drink beer (or wine), eat something fried (or green), watch football (or PBS), and drive American (or something European) they don't really give a fuck what the state claims at the expense of their rights.

[Marcus Bryant]

As long as the people can be scared, they will surrender their liberty with ease.

[CosmicCowboy]

We, the inheritors of this magnificent governing arrangement, have done our damnedest to piss it away. As long as a mass of the population can drink beer (or wine), eat something fried (or green), watch football (or PBS), and drive American (or something European) they don't really give a fuck what the state claims at the expense of their rights.

:lmao

:toast

Gems like that are why I keep coming back to this typically shallow gene pool of intellectual thought.

[ElNono]

And I agree mass wiretapping is probable illegal. Just when did that start anyway?

It was first reported in 2005. Do you know when it started? Does it matter when it started?


Why do you keep spinning my words incorrectly?

I didn't.


Not appology, but pointing out facts.

No, you're apologizing.


Should I walk away if a see a heart attack victim, or help, maybe call 911?
Should I not point out the truth when people lie?
Granted, one is more serious than the other. I just hate liars.

What you do is irrelevant. We're discussing losing our constitutional guarantees to privacy, not if you're a boy scout.


No. You are applying federal, state, and local restrictions to the executive branch. Lower laws cannot supersede the executive branch constitutional powers.

I'm not applying anything. I was under the impression we agreed that the 4th amendment is part of the constitution and that the executive is not above it.


OK Chump. Would you stop acting as if I disagree with that aspect?

Why bring up point-and-shoot then? If you agree the comparison is retarded, then keep it to yourself.


My God Chump. I'm tired of your stupidity.
Again.... Federal, state, and local requirements are not required of the executive branch.

Is that your answer for 'Why does the police force requests arrests warrants all the time?'... Just stop with the strawman and either answer the question or simply tell me you don't know.

[ElNono]

As long as the people can be scared, they will surrender their liberty with ease.

Which makes those scaring the people the automatic winners. It's really amazing how this escape some people.

[ElNono]

My opinion is the premise of the OP is illegal. I'm just not sure.

You know more about constitutional law than a judge? :lmao

[ElNono]

Are you saying a warrant is required before a policeman can arrest a bank robber in the commission of a crime?

I'm going to entertain this, even if it's irrelevant to the topic at hand.

If the police reviews a tape of the robbery 2 hours later, do they need a warrant to go arrest the robber at his residence?

[Wild Cobra]

Elnono, when you stop acting like Chump, and respond to my pointed answers about the details, without spinning, we can continue this. When you throw my words back to me, and ask question far off from what I stated already, then you are no better than Chump.

Bye.

You should be ashamed of throwing the fourth amendment argument back at me like you did.

I'm not applying anything. I was under the impression we agreed that the 4th amendment is part of the constitution and that the executive is not above it.
My answers on this have been clear. If you refuse to acknowledge what I previously said on the issue, then you can go fuck yourself.

[ElNono]

Elnono, when you stop acting like Chump, and respond to my pointed answers about the details, without spinning, we can continue this. When you throw my words back to me, and ask question far off from what I stated already, then you are no better than Chump.

Bye.

You should be ashamed of throwing the fourth amendment argument back at me like you did.

My answers on this have been clear. If you refuse to acknowledge what I previously said on the issue, then you can go fuck yourself.

Run Lola Run... :lol

[Wild Cobra]

Run Lola Run... :lol
Yeh right.

One last thing, and why you are pissing me off.

I have very well explained my stance of the 4th amendment. You either have not taken me at my work, completely ignored my words, or don't understand.

It is you who are running by pretending my stance if different than it is, so I'm done with your sorry ass Chump.

[George Gervin's Afro]

the dead enders are a bit sensitive tonight


:lmao

[ElNono]

Yeh right.

One last thing, and why you are pissing me off.

I have very well explained my stance of the 4th amendment. You either have not taken me at my work, completely ignored my words, or don't understand.

It is you who are running by pretending my stance if different than it is, so I'm done with your sorry ass Chump.

Your stance is clear as a day.

Wrong, but clear as day.

[Wild Cobra]

Your stance is clear as a day.

Wrong, but clear as day.
Then stop mischaracterizing it. Doing so means you have no intent of debate, but just want to piss me off. No point to continue then, is there.

[ElNono]

Then stop mischaracterizing it. Doing so means you have no intent of debate, but just want to piss me off. No point to continue then, is there.

What is there to debate when you succinctly claim that you don't know what you're talking about?

And it wasn't me that was running away from this thread. If you want to debate, then be prepared to be challenged in your opinions and assumptions.

[Wild Cobra]

What is there to debate when you succinctly claim that you don't know what you're talking about?

And it wasn't me that was running away from this thread. If you want to debate, then be prepared to be challenged in your opinions and assumptions.
When you intentionally misconstrue my words, I say Fuck you! What do you expect?

You know as well as anyone, this debate did not stick to the OP. I don't know all the facts behind the OP, but I can assume the FBI did exceed it's bounds, by the ruling.

Like all threads, we tend to go off on tangents.

I was arguing in general, my views on the 4th.

The E-Mail issue also came up.

Now if you are unwilling to address these individually, but insist of misconstruing my words between them, then again. Fuck You!

[ElNono]

When you intentionally misconstrue my words, I say Fuck you! What do you expect?

You know as well as anyone, this debate did not stick to the OP. I don't know all the facts behind the OP, but I can assume the FBI did exceed it's bounds, by the ruling.

Like all threads, we tend to go off on tangents.

I was arguing in general, my views on the 4th.

The E-Mail issue also came up.

Now if you are unwilling to address these individually, but insist of misconstruing my words between them, then again.

I quoted you every time I replied to you. I answered your propositions, even if they were completely unrelated to privacy, which is what we're discussing here.

See, the problem is not that your stance is now known or unclear.

Nobody misconstrued anything you said. We merely pointed out what the fallacies on your stance are, and you got all pissy about it.

What you think it's clear as a day. It's completely wrong, but clear as a day.


Fuck You!

Very substantive. You just exhale intellect. Is this the kind of debate you had in mind?

[Wild Cobra]

When you mix up my distinction between executive power, and that of the federal, state, and local law enforcements, there is no point in debating you.

[ElNono]

When you mix up my distinction between executive power, and that of the federal, state, and local law enforcements, there is no point in debating you.

Run Lola Run...

[Wild Cobra]

Run Lola Run...
If I'm running, it's because I don't have tall enough boots for your Shit.

Do your understand the distinction I make between executive power, and the laws that law enforcement operate under. Yes or no.

[ElNono]

Do your understand the distinction I make between executive power, and the laws that law enforcement operate under. Yes or no.

I do. And I pointed out repeatedly that your view on executive power is obviously flawed, and your view on the laws that law enforcement operate under is also flawed. It's most likely due to your own admission that you really don't know what it's constitutionally legal or not. Which really begs the question if you shouldn't be trying to educating yourself on things you want to debate about before you actually debate about them.

[Wild Cobra]

I do. And I pointed out repeatedly that your view on executive power is obviously flawed, and your view on the laws that law enforcement operate under is also flawed.

But do you at least agree I make distinction between them?


It's most likely due to your own admission that you really don't know what it's constitutionally legal or not.
I only said I don't know in regards to the data mining and the FBI case in the OP. After reading the PDF file, I agree the FBI was clearly out of bounds. I see the data mining as a gray area for two reasons. Not enough facts are known, and even then, the distinction as to where we separate unreasonable and reasonable is very subjective at times. I mentioned that the user agreements matter. You continue to argue against everything but my points. I specifically said that these providers cannot be compelled to give up the data without a warrant. I may have used subpoena, or both.

I otherwise never claimed ignorance to the fourth. Your portrayal of such is an insult to my intelligence. To twist my words is showing that you don't want a reasonable debate. I have specifically said that federal, state, and local law enforcement must follow the laws congress hands down and court precedent. I have specifically said that the executive branch is not beholden to congressional law. It seems to me that you, think congress can tie the hands of the executive branch.


Which really begs the question if you shouldn't try educating yourself on things you want to debate about before you actually debate about them.

You just refuse to see what I said in what perspective. What twisted part in in wants to increase the flames?

[ElNono]

But do you at least agree I make distinction between them?

I never claimed that you did not. I actually debated you on both. I don't even know how that escapes you.


I only said I don't know in regards to the data mining and the FBI case in the OP. After reading the PDF file, I agree the FBI was clearly out of bounds. I see the data mining as a gray area for two reasons. Not enough facts are known, and even then, the distinction as to where we separate unreasonable and reasonable is very subjective at times. I mentioned that the user agreements matter. You continue to argue against everything but my points. I specifically said that these providers cannot be compelled to give up the data without a warrant. I may have used subpoena, or both.

There's nothing grey about conducting an investigation when a judge is involved and a warrant issued. That's why the decision of what's reasonable or not is normally left to the judicial, and not arbitrarily determined by law enforcement (with clear and concise exemptions). That's what check and balances is all about.

As far as data mining goes, since the introduction of the Patriot act, and as far as email is concerned, there's no need for a warrant or a subpoena anymore. I do personally would like to see the Patriot Act and other laws that reduced that standard done away with, and requiring warrants again to allow access to such documents. Unfortunately, the idea that we should adjust our interpretation of what the constitution dictates are our personal privacy rights based on the contemporary boogeyman takes further away from that goal.



I otherwise never claimed ignorance to the fourth. Your portrayal of such is an insult to my intelligence. To twist my words is showing that you don't want a reasonable debate. I have specifically said that federal, state, and local law enforcement must follow the laws congress hands down and court precedent. I have specifically said that the executive branch is not beholden to congressional law. It seems to me that you, think congress can tie the hands of the executive branch.

Your understanding of the 4th amendment is entirely built in your own ideas of how it should be interpreted, as opposed to years of jurisprudence determining how it's indeed interpreted. When you do that, the one insulting everybody's else intelligence is you, not me.

And your interpretation of executive power is just as flawed. Under your interpretation of executive power, Congress is irrelevant. A President could merely govern using Presidential Orders. A quick look at Executive Order 10340 should tell you that the Executive cannot make law. Furthermore, Article 2 clearly states that Congress is indeed in charge of impeaching the officers of the executive branch under certain circumstances.


You just refuse to see what I said in what perspective. What twisted part in in wants to increase the flames?

I see what you said. As I said numerous times, your stance on this issue is, however wrong, clear as day.

[Wild Cobra]

I never claimed that you did not. I actually debated you on both. I don't even know how that escapes you.

Yes we did, and when you interpret federal law to castrate the executive branch, I fail to see how you accept such a premise.


There's nothing grey about conducting an investigation when a judge is involved and a warrant issued. That's why the decision of what's reasonable or not is normally left to the judicial, and not arbitrarily determined by law enforcement (with clear and concise exemptions). That's what check and balances is all about.

I agree with that. In the case of the OP, the FBI was clearly out of line. When we changed topics, and I specifically point out "executive," that's where we drift apart the most. You really confuse me when you apply lower laws to limit the presidential powers. Laws cannot superseded the constitution. You seem to think otherwise.


As far as data mining goes, since the introduction of the Patriot act, and as far as email is concerned, there's no need for a warrant or a subpoena anymore.
And I only agree with that when the data is freely given rather than by the service provider. I will say it is illegal to compel them to give any information without a warrant. I have also pointed out that "terms and conditions" agreements say that the information may be shared with third parties. I have never seen "terms and conditions" that do not have a law enforcement clause. Have you?

I do personally would like to see the Patriot Act and other laws that reduced that standard done away with, and requiring warrants again to allow access to such documents. Unfortunately, the idea that we should adjust our interpretation of what the constitution dictates are our personal privacy rights based on the contemporary boogeyman takes further away from that goal.

We will probably always disagree there. The fourth amendment specifically uses "unreasonable" for the reason as not to give absolute protection for people to commit crimes. It says:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..."

It does not say:

"The right of the people to be secure in their persons, houses, papers, and effects, against searches and seizures, shall not be violated..."

And again, a warrant is not required by constitution. It is a tool for when others attest to a chime committed. The courts and congress can tighten the requirements and require a warrant for law enforcement. However, they cannot do that to executive power, as they are not the executor of law, or above the constitution.


Your understanding of the 4th amendment is entirely built in your own ideas of how it should be interpreted, as opposed to years of jurisprudence determining how it's indeed interpreted. When you do that, the one insulting everybody's else intelligence is you, not me.

You are using jurisprudence for law enforcement, and applying it to the executive branch, which I do not accept. When speaking of the Patriot act, congress effectively removed many of the requirements that go beyond the simple constitutional ones.


And your interpretation of executive power is just as flawed. Under your interpretation of executive power, Congress is irrelevant. A President could merely govern using Presidential Orders. A quick look at Executive Order 10340 should tell you that the Executive cannot make law.
No. Executive orders cannot violate the constitution, but that's another topic yet. I think we have too much going on in this thread already to add another tangent. Don't you?

Furthermore, Article 2 clearly states that Congress is indeed in charge of impeaching the officers of the executive branch under certain circumstances.

Why are you going off on tangents? Are you doing such drastic changes in to topic because you are losing this debate?


I see what you said. As I said numerous times, your stance on this issue is, however wrong, clear as day.

We disagree. I accept the legal definitions of words like "warrant," from their defined meaning of the 18th century when it comes to the constitution. We cannot allow modern applications of words to change the meaning of the constitution. You seem to think we can.

[Wild Cobra]

AMENDMENT 4—SEARCHES AND SEIZURE (http://www.gpoaccess.gov/constitution/pdf2002/022.pdf), page 1283 to 1286:

Scope of the Amendment.—The language of the provision which became the Fourth Amendment underwent some modest changes on its passage through the Congress, and it is possible that the changes reflected more than a modest significance in the interpretation of the relationship of the two clauses. Madison’s introduced version provided ‘‘The rights to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.’’ As reported from committee, with an inadvertent omission corrected on the floor, the section was almost identical to the introduced version, and the House defeated a motion to substitute ‘‘and no warrant shall issue’’ for ‘‘by warrants issuing’’ in the committee draft. In some fashion, the rejected amendment was inserted in the language before passage by the House and is the language of the ratified constitutional provision.

As noted above, the noteworthy disputes over search and seizure in England and the colonies revolved about the character of warrants. There were, however, lawful warrantless searches, primarily searches incident to arrest, and these apparently gave rise to no disputes. Thus, the question arises whether the Fourth Amendment’s two clauses must be read together to mean that the only searches and seizures which are ‘‘reasonable’’ are those which meet the requirements of the second clause, that is, are pursuant to warrants issued under the prescribed safeguards, or whether the two clauses are independent, so that searches under warrant must comply with the second clause but that there are ‘‘reasonable’’ searches under the first clause which need not comply with the second clause. This issue has divided the Court for some time, has seen several reversals of precedents, and is important for the resolution of many cases. It is a dispute which has run most consistently throughout the cases involving the scope of the right to search incident to arrest. While the right to search the person of the arrestee without a warrant is unquestioned, how far afield into areas within and without the control of the arrestee a search may range is an interesting and crucial matter.

The Court has drawn a wavering line. In Harris v. United States, it approved as ‘‘reasonable’’ the warrantless search of a four-room apartment pursuant to the arrest of the man found there. A year later, however, a reconstituted Court majority set aside a conviction based on evidence seized by a warrantless search pursuant to an arrest and adopted the ‘‘cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use search warrants wherever reasonably practicable.’’ This rule was set aside two years later by another reconstituted majority which adopted the premise that the test ‘‘is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.’’ Whether a search is reasonable, the Court said, ‘‘must find resolution in the facts and circumstances of each case.’’ However, the Court soon returned to its emphasis upon the warrant. ‘‘The [Fourth] Amendment was in large part a reaction to the general warrants and warrantless searches that had so alienated the colonists and had helped speed the movement for independence. In the scheme of the Amendment, therefore, the requirement that ‘no Warrants shall issue, but upon probable cause,’ plays a crucial part.’’ Therefore, ‘‘the police must, whenever practicable, obtain advance judicial approval of searches and seizures through a warrant procedure.’’ Exceptions to searches under warrants were to be closely contained by the rationale undergirding the necessity for the exception, and the scope of a search under one of the exceptions was similarly limited.

During the 1970s the Court was closely divided on which standard to apply. For a while, the balance tipped in favor of the view that warrantless searches are per se unreasonable, with a few carefully prescribed exceptions. Gradually, guided by the variable expectation of privacy approach to coverage of the Fourth Amendment, the Court broadened its view of permissible exceptions and of the scope of those exceptions.

By 1992, it was no longer the case that the ‘‘warrants-with narrow- exceptions’’ standard normally prevails over a ‘‘reasonableness’’ approach. Exceptions to the warrant requirement have multiplied, tending to confine application of the requirement to cases that are exclusively ‘‘criminal’’ in nature. And even within that core area of ‘‘criminal’’ cases, some exceptions have been broadened. The most important category of exception is that of administrative searches justified by ‘‘special needs beyond the normal need for law enforcement.’’ Under this general rubric the Court has upheld warrantless searches by administrative authorities in public schools, government offices, and prisons, and has upheld drug testing of public and transportation employees. In all of these instances the warrant and probable cause requirements are dispensed with in favor of a reasonableness standard that balances the government’s regulatory interest against the individual’s privacy interest; in all of these instances the government’s interest has been found to outweigh the individual’s. The broad scope of the administrative search exception is evidenced by the fact that an overlap between law enforcement objectives and administrative ‘‘special needs’’ does not result in application of the warrant requirement; instead, the Court has upheld warrantless inspection of automobile junkyards and dismantling operations in spite of the strong law enforcement component of the regulation. In the law enforcement context, where search by warrant is still the general rule, there has also been some loosening of the requirement. For example, the Court has shifted focus from whether exigent circumstances justified failure to obtain a warrant, to whether an officer had a ‘‘reasonable’’ belief that an exception to the warrant requirement applied; in another case the scope of a valid search ‘‘incident to arrest,’’ once limited to areas within the immediate reach of the arrested suspect, was expanded to a ‘‘protective sweep’’ of the entire home if arresting officers have a reasonable belief that the home harbors an individual who may pose a danger.

[ElNono]

Yes we did, and when you interpret federal law to castrate the executive branch, I fail to see how you accept such a premise.

Where did I interpret that? Quote please. I merely said that the executive is not above the constitution, including the 4th amendment and it's interpretation. There's a reason the judiciary is tasked with determining what's constitutional and what isn't.


I agree with that. In the case of the OP, the FBI was clearly out of line. When we changed topics, and I specifically point out "executive," that's where we drift apart the most. You really confuse me when you apply lower laws to limit the presidential powers. Laws cannot superseded the constitution. You seem to think otherwise.

When I say law enforcement I'm obviously referring to law enforcement, not the executive. You just tried to make a point about what you think executive power is by answering a comment about law enforcement. Who is drifting?


And I only agree with that when the data is freely given rather than by the service provider. I will say it is illegal to compel them to give any information without a warrant. I have also pointed out that "terms and conditions" agreements say that the information may be shared with third parties. I have never seen "terms and conditions" that do not have a law enforcement clause. Have you?

There are privacy laws (or there were prior to the Patriot Act) precluding companies from sharing you personal information, period. That includes explicitly stating which information was going to be shared with third parties and giving you an option of opting out of such information sharing. You really need to brush up on the Electronic Communication Privacy Act. Last, the law enforcement rule has everything to do with collaborating with law enforcement requests under a subpoena or warrant, not aiding in deliberate data mining. Plenty of case law on this if you even care to look.


We will probably always disagree there. The fourth amendment specifically uses "unreasonable" for the reason as not to give absolute protection for people to commit crimes.

The standard for "reasonable" or "unreasonable" has changed wildly over time. You couldn't possibly claim to know exactly what the meaning of that is on a general scope because not even the Supreme Court over time has been able to do so.

That said, it's exclusive to the judiciary to interpret what "unreasonable" means under the constitution.



It says:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..."

It does not say:

"The right of the people to be secure in their persons, houses, papers, and effects, against searches and seizures, shall not be violated..."

And again, a warrant is not required by constitution. It is a tool for when others attest to a chime committed. The courts and congress can tighten the requirements and require a warrant for law enforcement.

Completely erroneous conclusion. A warrant is absolutely required by the constitution when the 'reasonable' standard cannot be met and there is probable cause. "No warrant shall issue"...


However, they cannot do that to executive power, as they are not the executor of law, or above the constitution.

What seems to escape you is that the Judiciary is the only power setting what the "reasonable" standard is, thus, since the constitution mandates a warrant when that standard is not met, the executive is absolutely tied to that requirement from the constitution.


You are using jurisprudence for law enforcement, and applying it to the executive branch, which I do not accept. When speaking of the Patriot act, congress effectively removed many of the requirements that go beyond the simple constitutional ones.

No, I'm tying jurisprudence to the law enforcement case. Which is pretty obvious you don't know much about (and while I don't pretend to be an expert in the field, I've done my due diligence to enter in this conversation).


No. Executive orders cannot violate the constitution, but that's another topic yet. I think we have too much going on in this thread already to add another tangent. Don't you?

This is yet another flaw in your executive power thinking, and theres actual evidence to the contrary of your view on it. That's exactly why I brought it up. But we can skip right over it if it makes you uncomfortable.


Why are you going off on tangents? Are you doing such drastic changes in to topic because you are losing this debate?

This is the typical you going on the defensive when somebody shoots down in flames your flawed premises. I'm not going on a tangent AT ALL. I'm destroying one by one your misconceptions about executive power.


We disagree. I accept the legal definitions of words like "warrant," from their defined meaning of the 18th century when it comes to the constitution. We cannot allow modern applications of words to change the meaning of the constitution. You seem to think we can.

This has nothing to do with modern or ancient definition of words. The constitution created three independent government branches (none more important than the other), assigned them different powers, and granted very specific rights.

[Blake]

Red light traffic cameras are of dubious constitutional legality to begin with. It's been argued successfully in a plethora of states that they violate the confrontational clause of the sixth amendment.

Sure, people have gotten off on the straight definition of having the right to face their accuser.

I'm also aware of all of the problems and glitches that red light cameras have hade, but in practical theory IMO, there's not much difference of having a cop sitting at an intersection watching cars go through than having an unmanned camera do the same job more efficiently.

[Blake]

You're joking, right?

I take it by your view, the police would need a warrant to make an arrest.

Think about that for a moment, before continuing to look the fool.

Police need a warrant to enter and/or search private property. They can arrest someone in public based on probable cause.

I'd like to see one of your examples so that I can figure out exactly what you are talking about.

[LnGrrrR]

They should only be able to read them with probable cause, which would require a sufficient chain to get to yours or my emails.

Are you aware that a few that have worked in that field have explained how it works? That they DON'T have probable cause, or that the probable cause is so small as to be laughable? For instance, let's say you send an email that contains the words al qaeda, NY, and terrorist in it... this means your email gets sent into a queue to determine the content of the message and whether it's nefarious or incidental. Would you say that constitutes probable cause?

[LnGrrrR]

Now what I didn't say is that if this was done by the executive branch, it would be legal. However, without expressed law by congress allowing the FBI to set their own probable cause requirements, or probable cause spelled out by congress, then this does violate other laws that do exist.

Here's my point though... Congress or FBI or whoever could define what they thought is sufficient for "probable cause", but the courts will be the ones to actually determine that. After all, the FBI could deem that anyone with letters in their name was enough evidence for "probable cause" (a hyperbole of course, but used to illustrate a point).

[LnGrrrR]

I mentioned that the user agreements matter.

I would argue that any clause whre you sign away your 4th Amendment rights is unconstitutional. Of course, whether that claim is valid or not won't get tested unless it goes to the SCOTUS.


I have specifically said that the executive branch is not beholden to congressional law. It seems to me that you, think congress can tie the hands of the executive branch.

They can in some matters. Potential SCOTUS judges need confirmation, for one thing. I'm sure there's a few examples out there besides that.

[Wild Cobra]

Police need a warrant to enter and/or search private property. They can arrest someone in public based on probable cause.

I'd like to see one of your examples so that I can figure out exactly what you are talking about.
Bullshit.

they can enter private property without a warrant, if they have some types of probable cause.

Are you telling me if they hear screams of a woman being raped, they cannot enter without a warrant. If they are just outside, they have to wait for a warrant?

[Wild Cobra]

I would argue that any clause whre you sign away your 4th Amendment rights is unconstitutional. Of course, whether that claim is valid or not won't get tested unless it goes to the SCOTUS.

I guess joining the military, signing away personal rights is unconstitutional then?

[LnGrrrR]

Bullshit.

they can enter private property without a warrant, if they have some types of probable cause.

Are you telling me if they hear screams of a woman being raped, they cannot enter without a warrant. If they are just outside, they have to wait for a warrant?

The whole point of cops entering in those moments are because it obviously would not make sense to wait for a warrant. But in the majority of cases, warrants are sought-after.

How many emails do they inspect that have a time-sensitive nature to them, do you think? And how would they know it's time-sensitive in nature BEFORE they read the email? The justification is sought after the liberty is violated.

[Wild Cobra]

The whole point of cops entering in those moments are because it obviously would not make sense to wait for a warrant. But in the majority of cases, warrants are sought-after.

How many emails do they inspect that have a time-sensitive nature to them, do you think? And how would they know it's time-sensitive in nature BEFORE they read the email? The justification is sought after the liberty is violated.
And my view about emails isn't so relaxed. Is it.

[LnGrrrR]

I guess joining the military, signing away personal rights is unconstitutional then?

Good rebuttal, actually. I would argue that the military is unique as far as some laws go. You and I can both agree that the military disallows some activities that a normal company couldn't, agreed?

Still, a good point, and while the military doesn't necessarily eliminate your rights, it still does restrict them.

[ElNono]

I would argue that any clause whre you sign away your 4th Amendment rights is unconstitutional. Of course, whether that claim is valid or not won't get tested unless it goes to the SCOTUS.

No such thing. People give up their 4th amendment protection on a daily basis by consenting to searches even if law enforcement doesn't have probable cause.

The 'user agreement' angle only enter the picture if you use a third party ISP to store your email. The ECPA requires a warrant to tap and trace (aka wiretap) wire, oral or electronic communications WHILE IN TRANSIT.
For example, we use our own email server, and thus even if we access it through the cell phone network or a wired network through any ISP it matter little wether the user agreement contains a clause waiving the 4th amendment protections for stored email. It would be unlawful for the ISP to MiM our communications without a warrant.

[ElNono]

And the standard for probable cause for arrest/search without a warrant has been established for a while. If law enforcement believes to be witness to a crime (prima facie), then it's allowed to search/arrest without a warrant. The standard normally only applies when they're a witness to the potential crime. This is an important distinction. (Obviously, there are minor exceptions, such as searches at airports. But this is the standard that applies day to day).

So, for example, if a captured drug dealer tells LE who their supplier is, LE needs to obtain a warrant to search the supplier's place. Sometimes, when LE cannot get a warrant, it's not uncommon for them to pay a visit anyways, looking to witness some type of crime (ie: observe drugs on the premises, be welcomed with guns blazing, etc) which would automatically waive the warrant requirement.

It's important to know what these standards are in order to protect your privacy.

[LnGrrrR]

Thanks ElNono. I wasn't sure about the specifics of searches regarding the 4th Amendment.

[Winehole23]

I’ve had a few posts recently on new Fourth Amendment decisions that I think are wrongly decided, and I wanted to flag an update on one case that I blogged about back in March: Rehberg v. Paulk (http://www.ca11.uscourts.gov/opinions/ops/200911897.pdf), the case holding that there is no Fourth Amendment protection in the contents of e-mails. I wrote a long post on why I thought the decision was wrong (http://volokh.com/2010/03/15/eleventh-circuit-decision-largely-eliminates-fourth-amendment-protection-in-e-mail/), and I ended the post with this note...http://volokh.com/2010/08/31/whatever-happened-to-rehberg-v-paulk/

[Trainwreck2100]

Old news but Cali Says Blow me DC


Court allows agents to secretly put GPS trackers on cars
August 27, 2010|By Dugald McConnell, CNN
Law enforcement officers may secretly place a GPS device on a person's car without seeking a warrant from a judge, according to a recent federal appeals court ruling in California.

Drug Enforcement Administration agents in Oregon in 2007 surreptitiously attached a GPS to the silver Jeep owned by Juan Pineda-Moreno, whom they suspected of growing marijuana, according to court papers.

When Pineda-Moreno was arrested and charged, one piece of evidence was the GPS data, including the longitude and latitude of where the Jeep was driven, and how long it stayed. Prosecutors asserted the Jeep had been driven several times to remote rural locations where agents discovered marijuana being grown, court documents show.
Advertisement

Pineda-Moreno eventually pleaded guilty to conspiracy to grow marijuana, and is serving a 51-month sentence, according to his lawyer.

But he appealed on the grounds that sneaking onto a person's driveway and secretly tracking their car violates a person's reasonable expectation of privacy.

"They went onto the property several times in the middle of the night without his knowledge and without his permission," said his lawyer, Harrison Latto.

The U.S. Ninth Circuit Court of Appeals rejected the appeal twice -- in January of this year by a three-judge panel, and then again by the full court earlier this month. The judges who affirmed Pineda-Moreno's conviction did so without comment.

Latto says the Ninth Circuit decision means law enforcement can place trackers on cars, without seeking a court's permission, in the nine western states the California-based circuit covers.

The ruling likely won't be the end of the matter. A federal appeals court in Washington, D.C., arrived at a different conclusion in similar case, saying officers who attached a GPS to the car of a suspected drug dealer should have sought a warrant.

Experts say the issue could eventually reach the U.S. Supreme Court.

One of the dissenting judges in Pineda-Moreno's case, Chief Judge Alex Kozinski, said the defendant's driveway was private and that the decision would allow police to use tactics he called "creepy" and "underhanded."

"The vast majority of the 60 million people living in the Ninth Circuit will see their privacy materially diminished by the panel's ruling," Kozinksi wrote in his dissent.

"I think it is Orwellian," said Marc Rotenberg, executive director of the Electronic Privacy Information Center, which advocates for privacy rights.

"If the courts allow the police to gather up this information without a warrant," he said, "the police could place a tracking device on any individual's car -- without having to ever justify the reason they did that."

But supporters of the decision see the GPS trackers as a law enforcement tool that is no more intrusive than other means of surveillance, such as visually following a person, that do not require a court's approval.

"You left place A, at this time, you went to place B, you took this street -- that information can be gleaned in a variety of ways," said David Rivkin, a former Justice Department attorney. "It can be old surveillance, by tailing you unbeknownst to you; it could be a GPS."

He says that a person cannot automatically expect privacy just because something is on private property.

"You have to take measures -- to build a fence, to put the car in the garage" or post a no-trespassing sign, he said. "If you don't do that, you're not going to get the privacy."

[Winehole23]

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2021439&http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2021439

[Winehole23]

Secrecy and federal court dockets: On the nuts and bolts of authorizing government surveillance
The second panel at the Yale Law School's March 3 symposium on Location Tracking and Biometrics (http://yaleisp.org/event/location-tracking-and-biometrics-conference) focused on the question of "Phones and Mobile Privacy: Government Requests to Carriers." (Go here to see the video (http://www.youtube.com/user/YaleUniversity?feature=watch); the second panel begins at the 3:03:40 mark.)

Kevin Bankston (https://www.cdt.org/personnel/kevin-bankston), an attorney at the Center for Democracy and Technology, opened by recounting his "best week" as a lawyer in December 2010, which included the 6th Circuit Court of Appeals decision in US v. Warshak related to whether there exists a "reasonable expectation of privacy" for emails stored by third parties in "the cloud." The 1986 Electronic Communications Privacy Act (ECPA), which allows the government to access emails more than 180 days old without a warrant if they're stored by a third party, was held unconstitutional by the appellate court (though regrettably its holding only applies in that circuit).

In that ruling, the 6th Circuit offered up this observation which to me sums up the basis for reconsidering electronic privacy, not just for stored email but on location tracking and many other fronts: “the Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish.” (I would have added that, if the courts can't or won't do it, legislative bodies must.)

The Obama Administration did not appeal the 6th Circuit ruling, in Bankston's opinion because they feared that the Supreme Court might extend the precedent nationwide. The government argued it didn't need a warrant based on cases from the 70s based on third party doctrine - US v Miller (bank records) and Smith v. Maryland (pen registers) - and if SCOTUS agreed with the Sixth court's ruling it could have profound implications beyond just stored email.

Even though the 6th Circuit ruling applies only in that jurisdiction, Bankston said the result has been that several tech companies have begun asking for warrants every time the government requests stored content. He thinks we're getting close to "a de facto rule of warrants for content" nationwide, even though SCOTUS hasn't taken up the question. (That sounded optimistic to me, but I hope he's right.)

That same week, the 3rd Circuit declined to hold an en banc hearing on a decision by a three-judge panel which allowed (but did not require) magistrate judges to insist upon full-blown probable cause warrants for location tracking data. By contrast to Warshak, the 3rd court's ruling was "cabined and conditional." It provided no "new juice" at the legislative level for restricting location tracking and neither the government nor the cell carriers changed their practices as a result. Moreover, unlike the 6th Circuit case on stored email, the government hasn't been afraid to appeal rulings on location tracking when they lose (as evidenced by a case pending on the topic in the 5th Circuit (http://gritsforbreakfast.blogspot.com/2012/10/5th-circuit-to-decide-whether-police.html), whose jurisdiction includes Texas.)

For many years, said Bankston, such orders were issued in secret. It wasn't until 2005 when Stephen Smith, a federal magistrate judge in Houston who was also on the panel, first denied one of these applications that anyone outside the government knew this was going on. (For more background, see Bankston's 2007 article, "Only the DOJ Knows: The Secret Law of Electronic Surveillance (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2009442).")http://gritsforbreakfast.blogspot.com/2013/03/secrecy-and-federal-court-dockets-on.html?spref=fb

[Winehole23]

The President Barack Obama administration is claiming that authorities do not need court warrants to affix GPS devices to vehicles to monitor their every move.


The administration maintains that position despite the Supreme Court’s infamous decision last year (http://www.wired.com/threatlevel/2012/01/scotus-gps-ruling/) that concluded that attaching the GPS devices amounted to search protected by the Constitution.


The administration is set to make its argument Tuesday before a federal appeals court in a case testing the parameters of the high court’s 2012 decision. If the government prevails, the high court’s ruling would be virtually meaningless.


“This case is the government’s primary hope that it does not need a judge’s approval to attach a GPS device to a car,” Catherine Crump, an attorney with the American Civil Liberties Union, said in a telephone interview.


Crump will square off on the issue Tuesday with the Obama administration before the 3rd U.S. Circuit Court of Appeals in Philadelphia.


The question of whether probable-cause warrants issued by a judge are needed is an open one because the high court stopped short of answering it. The court ruled in January, 2012, that attaching the device amounted to a constitutionally protected search because it was a trespass on a private vehicle.

http://www.wired.com/threatlevel/2013/03/gps-warrant-requirement/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+wired%2Findex+%28Wired%3A+Top +Stories%29&utm_content=Google+Reader

[Winehole23]

The government's latest brief (http://www.aclu.org/files/assets/katzin_government_appeal.pdf) (pdf) on subject to the Third Court of Appeals says they should be able to use such trackers to develop probable cause, a notion that turns the Fourth Amendment on its head.

If the court doesn't buy that argument, the feds maintain judges should apply the automobile exception to the Fourth Amendment that allows a lower standard to search a vehicle at a traffic stop than a person's home. The automobile exception, though, was created to let police look for contraband. It's quite another thing entirely to say it justifies continuous tracking over time.

Incidentally, Mr. Jones, of US v. Jones fame, saw his case result in a deadlocked jury (http://www.wired.com/threatlevel/2012/12/warrantless-cell-site-data/) earlier this month. The government, after being told it couldn't use information from the GPS tracking device in his car, used tracking data from his cell-phone instead to generate the same location information. So it wasn't the lack of location data that soured the case but the state's failure to provide other, sufficient proof of his guilt. Still, the episode shows the relationship between cell-phone tracking and US v. Jones - if that loophole isn't closed, Jones becomes essentially useless for protecting personal privacy in an era where nearly every adult has a cell phone.http://gritsforbreakfast.blogspot.com/2013/03/big-government-run-amok-obama.html?spref=fb

[Winehole23]

These federal cases demonstrate why Rep. Bryan Hughes HB 1608 has received so much support (http://www.capitol.state.tx.us/BillLookup/Authors.aspx?LegSess=83R&Bill=HB1608) in the Texas House, along with bipartisan support (http://gritsforbreakfast.blogspot.com/2013/03/sen-estes-get-warrant-for-cell-phone.html) for a warrant requirement for cell-phone location data in the Senate. Opponents of the measure have been arguing of late that your personal location information does not belong to you, that you've given up any "reasonable expectation of privacy" regarding your location simply by carrying a cell phone. This is the "third-party" exception - an ill-advised, SCOTUS-written carve-out of the Fourth Amendment that Justice Sonia Sotomayor argued should be reconsidered in her concurrence (http://www.jsonline.com/blogs/news/137911823.html) to Jones in an era when so much data about us is now held by private companies. Sotomayor argued that to allow continuous, warrantless tracking by the government would "alter the relationship between citizen and government in a way that is inimical to democratic society." She's right.same

[Winehole23]

knock on effect:


Prior to hearing oral argument in the Proposition 8 case this morning, the Supreme Court handed down its decision (http://www.supremecourt.gov/opinions/12pdf/11-564_jifl.pdf) in Florida v. Jardines (http://www.scotusblog.com/case-files/cases/florida-v-jardines/?wpmp_switcher=desktop), the other dog sniff case (Florida v. Harris (http://www.scotusblog.com/case-files/cases/florida-v-harris/?wpmp_switcher=desktop) was decided last month). In an opinion written by Justice Scalia, the Court affirmed the Florida Supreme Court. The Court held a dog sniff at the front door of a house where the police suspected drugs were being grown constitutes a search for purposes of the Fourth Amendment. Justice Kagan filed a concurrence joined by Justices Ginsburg and Sotomayor. Justice Alito filed a dissent joined by the Chief Justice, and Justices Kennedy and Breyer.


Justice Scalia’s opinion for the Court resolved the Fourth Amendment question solely on property rights grounds, holding that bringing a dog to conduct a forensic search on someone’s porch constitutes a trespass at common law and, under the reasoning of last term’s GPS case, United States v. Jones (http://www2.bloomberglaw.com/public/document/United_States_v_Jones_No_101259_2012_BL_14420_US_J an_23_2012_Cour), constituted a search subject to the limitations of the Fourth Amendment. While the general public, including the police, generally have license to approach a house’s front door (for example, to leave a flier or ask the occupant to answer a question), that license does not include an invitation to bring a dog onto the porch to search for drugs. If a member of the public did that, Justice Scalia observed, it would “inspire most of us to – well, call the police.” For that reason, the majority decision found it unnecessary to decide whether the dog sniff also violated the suspect’s reasonable expectation of privacy.
http://www.scotusblog.com/2013/03/opinion-issued-in-florida-v-jardines/

[Winehole23]

With Independence Day approaching, Grits still laments this session's near-miss victory for the Fourth Amendment regarding warrants for cell-phone location data, legislation carried by state Rep. Bryan Hughes and state Senators Juan Hinojosa and Craig Estes that nearly passed as an amendment. This NY Times headline (http://bits.blogs.nytimes.com/2013/07/02/with-montanas-lead-states-may-demand-warrants-for-cellphone-data/?_r=0) yesterday would have looked a lot better with Texas in the title than Montana, that's for sure.

The public faces increasing commercial pressure (http://www.networkworld.com/community/node/83257) to utilize cell-phone location data (http://www.businessinsider.com/how-mobile-location-data-is-collected-2013-7) that right now is not covered by Fourth Amendment protections under the Supreme Court's third party exception (http://www.digitaltrends.com/web/the-digital-self-can-the-4th-amendment-fit-in-140-characters/). But location data is only the spearpoint of the issue. To me, eventually the entire third-party doctrine spawned from the court's Smith and Miller cases in the '70s (see here for an example (http://www.thedailybeast.com/articles/2013/07/01/why-bush-violated-the-fourth-amendment-and-obama-has-not.html) of an Obama apologist using those cases to justify the NSA gobbling up everyone's cell-phone metadata ) must be reconsidered in light of the advent of cloud computing in the digital age, as Justice Sonia Sotomayor rightly argued in US v. Jones (http://bluemassgroup.com/2013/06/justice-sotomayors-awesome-concurring-opinion-in-jones/). These were already going to be some of the biggest Fourth Amendment issues of the decade before anyone ever heard of Edward Snowden, though he certainly heightened their profile.

Approaching a holiday celebrating our freedoms, I am gratified the Lege offered its own contribution to the national debate over digital Fourth Amendment protections, making Texas the first state to require law enforcement to get warrants for cloud-based email (http://gritsforbreakfast.blogspot.com/2013/06/sticklands-warrants-for-cloud-content.html) and other content. Grits expects other states to follow our lead, just as other states (http://gritsforbreakfast.blogspot.com/2013/06/missouri-joins-maine-requiring-warrants.html) are already following Montana's on cell phones. Maybe in 2015 the Texas Electronic Privacy Coalition (http://txepc.org/) can convince the Lege to pick up the cell-phone location data bill like a bowler picks up a spare. But it sure would have been nice to get both of them this time. Rep. Hughes and Co. were awfully close to have it peter out at the end (http://gritsforbreakfast.blogspot.com/2013/05/house-amendment-on-cell-phone-location.html).http://gritsforbreakfast.blogspot.com/2013/07/third-party-doctrine-and-future-of.html?spref=fb

[LnGrrrR]

And the whole PRISM program is what people like ElNono, WH23 and I feared (and expected) was out there.

[Winehole23]

Today the Third Circuit Court of Appeals ruled (https://www.aclu.org/sites/default/files/assets/2013.10.22_-_doc_003111427339_precedential_opinion.pdf) that law enforcement agents must obtain a warrant based on probable cause to attach a GPS device to a car and track its movements. The case, United States v. Katzin, is the first in which a federal appeals court has explicitly held that a warrant is required for GPS tracking by police. The ACLU submitted an amicus brief (https://www.aclu.org/files/assets/katzin_amicus_stamped.pdf) in the case (joined by the ACLU of Pennsylvania, Electronic Frontier Foundation, and National Association of Criminal Defense Lawyers) and presented oral argument to the court in March.https://www.aclu.org/blog/technology-and-liberty-national-security/victory-federal-appeals-court-rules-warrant-required

[Winehole23]

Supreme Court weighs in:


If the government puts a GPS tracker on you, your car, or any of your personal effects, it counts as a search—and is therefore protected by the Fourth Amendment.


The Supreme Court clarified and affirmed that law on Monday, when it ruled on (http://www.supremecourt.gov/opinions/14pdf/14-593_o7jq.pdf)Torrey Dale Grady v. North Carolina (http://www.supremecourt.gov/opinions/14pdf/14-593_o7jq.pdf), before sending the case back to that state’s high court. The Court’s short but unanimous opinion helps make sense of how the Fourth Amendment, which protects against unreasonable search and seizure, interacts with the expanding technological powers of the U.S. government.

“It doesn’t matter what the context is, and it doesn’t matter whether it’s a car or a person. Putting that tracking device on a car or a person is a search,” said Jennifer Lynch (https://www.eff.org/about/staff/jennifer-lynch), a senior staff attorney at the Electronic Freedom Foundation (EFF).
http://www.theatlantic.com/technology/archive/2015/03/supreme-court-if-youre-being-gps-tracked-youre-being-searched/389114/

[Winehole23]

technology moves faster than the law:


Thousands of jails and prisons across the United States use a company called Securus Technologies to provide and monitor calls (https://www.nytimes.com/2015/03/31/us/steep-costs-of-inmate-phone-calls-are-under-scrutiny.html) to inmates. But the former sheriff of Mississippi County, Mo., used a lesser-known Securus service to track people’s cellphones, including those of other officers, without court orders, according to charges filed against him in state and federal court...Between 2014 and 2017, the sheriff, Cory Hutcheson, used the service at least 11 times, prosecutors said. His alleged targets included a judge and members of the State Highway Patrol. Mr. Hutcheson, who was dismissed last year in an unrelated matter, has pleaded not guilty in the surveillance cases.

https://www.nytimes.com/2018/05/10/technology/cellphone-tracking-law-enforcement.html

[Winehole23]

“Securus is neither a judge nor a district attorney, and the responsibility of ensuring the legal adequacy of supporting documentation lies with our law enforcement customers and their counsel,” the spokesman said in a statement.

[Winehole23]

Courts are split on whether investigators need a warrant based on probable cause to acquire location data. In some states, a warrant is required for any sort of cellphone tracking. In other states, it is needed only if an investigator wants the data in real time. And in others no warrant is needed at all.


The Justice Department has said its policy is to get warrants for real-time tracking. The Supreme Court has ruled that putting a GPS tracker on a car counts as a search under the Fourth Amendment, but this was because installing the device involved touching a person’s property — something that doesn’t happen when a cellphone is pinged.

[boutons_deux]

Service Meant to Monitor Inmates’ Calls Could Track You, Too

the former sheriff of Mississippi County, Mo., used a lesser-known Securus service to track people’s cellphones, including those of other officers, without court orders, according to charges filed against him in state and federal court.

The service can find the whereabouts of almost any cellphone in the country within seconds.

It does this by going through a system typically used by marketers and other companies to get location data from major cellphone carriers, including AT&T, Sprint, T-Mobile and Verizon, documents show.

As location tracking has become more accurate, and as more people carry their phones at every waking moment, the ability of law enforcement officers (https://www.nytimes.com/2017/06/05/us/politics/supreme-court-cellphone-tracking.html) and companies like Securus to get that data has become an ever greater privacy concern.

Securus offers the location-finding service as an additional feature for law enforcement and corrections officials, part of an effort to entice customers in a lucrative but competitive industry. In promotional packets, the company, one of the largest prison phone providers (https://www.nytimes.com/2015/10/01/us/fcc-seeks-to-limit-and-lower-costs-of-inmates-phone-calls.html) in the country, recounts several instances in which the service was used.

Asked about Securus’s vetting of surveillance requests, a company spokesman said that

it required customers to upload a legal document, such as a warrant or affidavit, and certify that the activity was authorized. :lol
“Securus is neither a judge nor a district attorney, and the responsibility of ensuring the legal adequacy of supporting documentation lies with our law enforcement customers and their counsel,”

The senator said relying on customers to provide documentation was inadequate. “Wireless carriers have an obligation to take affirmative steps to verify law enforcement requests,” he wrote, adding that Securus did not follow those procedures.

With customers’ consent, carriers sell the ability to acquire location data for marketing purposes like providing coupons when someone is near a business, or services like roadside assistance or bank fraud protection. Companies that use the data generally sign contracts pledging to get people’s approval — through a response to a text message, for example, or the push of a button on a menu — or to otherwise use the data legally.

But the contracts between the companies, including Securus, are “the legal equivalent of a pinky promise,”

The Supreme Court has ruled that putting a GPS tracker on a car counts as a search under the Fourth Amendment, but this was because installing the device involved touching a person’s property — something that doesn’t happen when a cellphone is pinged.

As long as they are following their own privacy policies, :lol :lol

carriers “are largely free to do what they want with the information they obtain, including location information, as long as it’s unrelated to a phone call,”


https://www.nytimes.com/2018/05/10/technology/cellphone-tracking-law-enforcement.html

[Winehole23]

that's the story I just posted

[Winehole23]

app Beta leaks real time location, no password required:


A little-known service has been leaking the real-time locations of US cell phone users to anyone who takes the time to exploit an easily spotted bug in a free trial feature, security news site KrebsOnSecurity reported Thursday.

LocationSmart, as the service is known, identifies the locations of phones connected to AT&T, Sprint, T-Mobile, or Verizon, often to an accuracy of a few hundred yards, reporter Brian Krebs said (https://krebsonsecurity.com/2018/05/tracking-firm-locationsmart-leaked-location-data-for-customers-of-all-major-u-s-mobile-carriers-in-real-time-via-its-web-site/). While the firm claims it provides the location lookup service only for legitimate and authorized purposes, Krebs reported that a demo tool on the LocationSmart website could be used by just about anyone to surreptitiously track the real-time whereabouts of just about anyone else.https://arstechnica.com/information-technology/2018/05/service-leaked-locations-of-us-cell-phones-for-free-no-password-required/

[Winehole23]

Roberts joins the libs:


a warrant is required in there rare case where the suspect has a legitimate privacy interest in records held by a third party


We decline to grant the state unrestricted access to awireless carrier’s database of physical location information.In light of the deeply revealing nature of CSLI,its depth, breadth, and comprehensive reach, and theinescapable and automatic nature of its collection, the factthat such information is gathered by a third party does notmake it any less deserving of Fourth Amendment protection.The Government’s acquisition of the cell-site recordshere was a search under that Amendment.The judgment of the Court of Appeals is reversed, and Cite as: 585 U. S. ____ (2018) 23Opinion of the Courtthe case is remanded for further proceedings consistentwith this opinion.

https://www.supremecourt.gov/opinions/17pdf/16-402_h315.pdf

[boutons_deux]

lots of other shit for sale

http://www.spurstalk.com/forums/showthread.php?t=219383&p=9436314&viewfull=1#post9436314

[Winehole23]

Homeland Security bridles at GPS tracking decision:

the decision: https://arstechnica.com/tech-policy/2018/09/judge-to-feds-no-you-cant-warrantlessly-put-a-gps-device-on-truck-entering-us/

resistance:


If HSI wants to argue that it can engage in warrantless GPS tracking of vehicles, that is within its prerogatives... However, Jones does not support a 48-hour window within the border. Instead, Jones establishes that the government needs a warrant signed by a neutral magistrate judge based on probable cause consistent with the Fourth Amendment. Moreover, Congress has established that a warrant is necessary for the installation of a mobile tracking device, which included GPS devices. In 18 U.S.C. 3117 (https://www.law.cornell.edu/uscode/text/18/3117), Congress does not discuss any exception for border searches. Indeed, once a device is put on a vehicle, it likely will leave the border area, which undercuts the government's position.https://arstechnica.com/tech-policy/2018/10/feds-to-judge-we-still-think-we-can-put-gps-trackers-on-cars-entering-us/