a preview of coming attractions?
Jun. 26th, 2014 09:13 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
twoelevenlots of people have already discussed the supremes' ruling in riley v california, and in any case, i think the supremes themselves did a fine job summarizing their logic:
what i think is most significant about the ruling is what it says about the supremes' thinking on privacy and rights in general. given that there's a number of cases about these already grinding their way through federal courts -- the recent decision by judge brown of the district court for oregon slapping down the so-called "no-fly" list; the various suits against the NSA's eavesdropping on cell phones, email, and web traffic; and the assorted cases against the obama administration's charming claim it can assassinate any american it wants, because it says so -- it's likely these same justices will hear at least some of them. the odds also are the roberts will still be chief justice then, and he wrote all the fine, fine text in the ruling.
there's one uniting principle in these cases: the administration claims that its own procedures are adequate to ensure people's rights are being protected. strangely, that doesn't seem to accord with the founders' notions of due process, as roberts noted:
if the administration's lawyers aren't frantically rewriting their arguments to address that shot across their collective bows, they aren't paying attention. this is essentially what judge brown wrote in junking the no-fly list, and the supremes have now indicated that they agree with that reasoning. and as the administration has been forced to admit that, yes, they have a secret list of americans to kill, i expect the suits against that will add that to their list of charges against it.
when dealing with the various sorts of government snooping, the supremes seem fully aware of the effect of letting the government rummage through people's lives. they introduce a few new variations on the "mosaic theory" -- the whole is greater than the sum of its parts when dealing with pervasive spying -- first introducted in US v jones. they even refer to the case, though in its original form:
they then go on in that vein:
the same, of course, could be said about one's net traffic. finally, roberts ends his opinion with a little history about the causes of the american revolution:
i think that's a direct warning to the administration that grabbing information willy-nilly because it suits them isn't gonna work with the supremes, and since madison v marbury, they are the law.
One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy. See Kerr, Foreword: Accounting for Technological Change, 36 Harv. J. L. & Pub.Pol’y 403, 404–405 (2013). Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a trunk of the sort held to require a search warrant in Chadwick, supra, rather than a container the size of the cigarette package in Robinson.(p 17)
what i think is most significant about the ruling is what it says about the supremes' thinking on privacy and rights in general. given that there's a number of cases about these already grinding their way through federal courts -- the recent decision by judge brown of the district court for oregon slapping down the so-called "no-fly" list; the various suits against the NSA's eavesdropping on cell phones, email, and web traffic; and the assorted cases against the obama administration's charming claim it can assassinate any american it wants, because it says so -- it's likely these same justices will hear at least some of them. the odds also are the roberts will still be chief justice then, and he wrote all the fine, fine text in the ruling.
there's one uniting principle in these cases: the administration claims that its own procedures are adequate to ensure people's rights are being protected. strangely, that doesn't seem to accord with the founders' notions of due process, as roberts noted:
[T]he Government proposes that law enforcement agencies “develop protocols to address” concerns raised by cloud computing. Reply Brief in No. 13–212, pp. 14–15. Probably a good idea, but the Founders did not fight a revolution to gain the right to government agency protocols.(p 22)
if the administration's lawyers aren't frantically rewriting their arguments to address that shot across their collective bows, they aren't paying attention. this is essentially what judge brown wrote in junking the no-fly list, and the supremes have now indicated that they agree with that reasoning. and as the administration has been forced to admit that, yes, they have a secret list of americans to kill, i expect the suits against that will add that to their list of charges against it.
when dealing with the various sorts of government snooping, the supremes seem fully aware of the effect of letting the government rummage through people's lives. they introduce a few new variations on the "mosaic theory" -- the whole is greater than the sum of its parts when dealing with pervasive spying -- first introducted in US v jones. they even refer to the case, though in its original form:
Although the data stored on a cell phone is distinguished from physical records by quantity alone, certain types of data are also qualitatively different. An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns—perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD. Data on a cell phone can also reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building. See United States v. Jones, 565 U. S. ___, ___ (2012) (SOTOMAYOR, J., concurring) (slip op., at 3) (“GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”).(pp 19-20)
they then go on in that vein:
In 1926, Learned Hand observed (in an opinion later quoted in Chimel) that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” United States v. Kirschenblatt, 16 F. 2d 202, 203 (CA2). If his pockets contain a cell phone,however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.(pp 20-21)
the same, of course, could be said about one's net traffic. finally, roberts ends his opinion with a little history about the causes of the american revolution:
Our cases have recognized that the Fourth Amendment was the founding generation’s response to the reviled “general warrants” and “writs of assistance” of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the Revolution itself. … According to Adams, Otis’s speech was “the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.” Id., at 248 (quoted in Boyd v. United States, 116 U. S. 616, 625 (1886)).(pp 27-28)
Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.
i think that's a direct warning to the administration that grabbing information willy-nilly because it suits them isn't gonna work with the supremes, and since madison v marbury, they are the law.
no subject
Date: Jun. 27th, 2014 01:19 pm (UTC)