Fifth Circuit Upholds Warrantless Cellphone Location Tracking 149
First time accepted submitter mendax writes "The New York Times is reporting, 'In a significant victory for law enforcement, a federal appeals court on Tuesday said that government authorities could extract historical location data directly from telecommunications carriers without a search warrant. The closely watched case, in the United States Court of Appeals for the Fifth Circuit, is the first ruling (PDF) that squarely addresses the constitutionality of warrantless searches of historical location data stored by cellphone service providers. Ruling 2 to 1, the court said a warrantless search was 'not per se unconstitutional' because location data was 'clearly a business record' and therefore not protected by the Fourth Amendment.'' The article pointed out that this went squarely against a New Jersey Supreme Court opinion rendered earlier this month but noted that the state court's ruling was based upon the text of the state's constitution, not that of the federal constitution."
LOL Corporations! (Score:3)
Not a person when the federal government feels like it.
Re:LOL Corporations! (Score:5, Insightful)
This has nothing to do with the concept of "corporate personhood", whether you agree with it or not.
This is a 4th Amendment issue. Searches and seizures of anything are protected for personal effects and papers. Electronic records are arguably that, but this court did not agree. It needs to be settled by SCOTUS.
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RIght, but if corporations are people, then their business records are clearly "personal effects and papers," no?
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RIght, but if corporations are people, then their business records are clearly "personal effects and papers," no?
IANAL but that's exactly what I was thinking. You can't have your cake and eat it, too. So I guess someone in that jurisdiction needs to start suing their mobile provider to get them to delete all this location data once their bill has been paid. After all, they need the location data for billing purposes. Once the bill has been settled, they no longer need those records, only the settled invoice itself. And since I prepay, have unlimited everything, and have no roaming capabilities, there is no need to
Re:LOL Corporations! (Score:5, Interesting)
A 'business record' whether held by an individual or a corporation (person or otherwise) is a '3rd party' record and as such isn't protected by YOUR 4th Amendment rights. It would be no different if you paid your neighbor to record your movements and they asked them for your data.
That said, the troubling aspects are we've made the jump from business records (how the business runs its operations) to user generated records housed and recorded by the business. The law makes no distinction, but the latter has massive privacy implications.
I suppose if there were truly a free market (I hate that word btw) we'd have entries into the mobile wireless business doing what VPNs have for a while. I.e. no logging 'at all'.
If the gov't in any way compels a business to keep records (and there lots of valid reasons for this) then those records are not considered 'business records' and need applicable warrants, etc.
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Except that makes no sense (not surprisingly). Again, the text of the 4th Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be vi
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The Constitution is vague on purpose...it's a feature not a bug.
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You still haven't answered the question, how is the data that Verizon creates and stores somehow legally 'my' data?
Our legal system is based on harm and jeopardy and if it isn't 'your' data you aren't in jeopardy. If it isn't Verizon's data
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I don't care about the legal aspects
Duly noted, we're done here then.
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"While the ruling is troubling on a number of levels the concept itself is fine. "
There is another aspect to it that is being ignored here, and by the court as well.
Other courts (I don't have a specific citation at hand, but it's been in the news) have ruled that while collecting specific data may not be a search, aggregating data over time can constitute surveillance or a search subject to 4th Amendment protection.
I think it is pretty clear that cell phone location data is aggregated over time, and can reveal things about one's life that even a direct search (or police "tail") mig
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Because your personal data (the information which may indicate the position of your PERSON at a particular time and place) is constitutionally unprotected when it's possessed by a non-person entity? It's suddenly impersonal data?
My right to be secure in my person (which extends to every time and place of my being, past, present and future) and effects is not violated by means of wresting that information unconstitutionally from a business? How is that not two offenses against the law?
If the information soug
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you say it's 'your data'. How so? I agree it *should* be, but it isn't in the current legal system.
If my current location is unknown to the government, do they have any right to obtain that information without a warrant?
Yes, that information may belong to another party which may divulge that information, which I may generally have no legal right to demand that they shield that information. But the assumption that the government may intrude on this relationship at will to impose it's demands, whether justified by time or distance, is simply unconstitutional. As far as the Constitution is concerned, this i
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A subpoena is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:
subpoena 'ad testificandum' orders a person to testify before the ordering authority or face punishment. The subpoena can also request the testimony to be given by phone or in person.
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Umm, does the process for issuing a subpoena look anything like that for a warrant?
For example, is it issued on the authority of a court of law? After evidence is submitted showing the legal reasoning for the issuing of said subpoena? For the purpose of hearing testimony concerning a particular real or perceived contest of law currently being reviewed in that court?
How do you get from that to justifying warrantless, legally unsupervised raids on data at large? I really don't see any connection.
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Show me anything that says that the government may demand testimony from someone regarding my position at any time, without a warrant?
You asked for 'anything' that said compelling testimony without a warrant and I gave it to you.
Now you ask how you get to warrantless 'legal' wiretapping? Um, because they're using subpoenas which as we've discovered today are NOT search warrants.
It ain't right or what I'd like the world to be, but that IS the world we live in. Subpoena's are perfectly valid tools for the legal system, but they've been expanded to allow everything under the sun and that's the problem. Not that they can compel you t
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Subpoenas are subject to the same procedure and limits as the 4th Amendment provides for warrants.
For the purposes of this argument, subpoenas have the same scope and limits as a warrant has, but merely for different purposes. Subpoenas do not give the government an end-run around 4th Amendment, but must be supported by the same standards as warrants are.
Is that clear yet?
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Anywho, you're doing a fine job of trolling so I'll leave you to yourself.
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I never said they were unreasonable, per se.
http://www.nacdl.org/CHAMPION/ARTICLES/97jan02.htm [nacdl.org]
A subpoena may not be issued to collect evidence for a pending case or to help a prosecutor prepare a case for trial.
Neither may a subpoena be issued to collect evidence unrelated to the case.
Such subpoenas would be unreasonable.
Trolling? I asked for you to demonstrate something other than a warrant and you responded with a warrant, albeit one known principally by another legal term.
A subpoena is a warrant to procu
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I agree it *should* be, but it isn't in the current legal system.
Of course not. That would be inconvenient to those in power.
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"The point is the type of 'records' doesn't matter except in very very specific cases. If it's held by a 3rd party, you don't have grounds to invoke the 4th Amendment."
I disagree about whether that is "the point". I think the court is missing "the whole point" of the 4th Amendment. Remember that generally speaking, it is not the letter of the law that is important, but what the authors of the law meant when they wrote it.
There are a couple of things that are pretty clear about this, given the realities of the day: (1) that this kind of electronic record is, for all intents and purposes, equivalent to "the papers and effects" envisioned when the 4th Amendment was writte
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What the law currently doesn't differentiate between is 'business records' kept for operating a business and data that a user's actions caused to be created such as location histories (as opposed actual user generated content which is protected). That's the crux of the problem.
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Rather, it is a set of absolute rules intended to limit the power of Federal government. But "absolute" does not refer to an "interpretation" of the words; rather, it means that laws are to be followed in the way that the original writers intended. Not according to modern changed meanings of words or phrases, or in some way that a non-scholar might read them without knowing the history.
The only sense in which t
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Not according to modern changed meanings of words or phrases
So you believe then that 'digital' documents have absolutely no constitutional protections?...since the founders clearly couldn't have meant what they couldn't imagine. You're 'papers' are secure, but don't type them in?
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The important thing is what was meant, not the exact words. For example, a person's "papers" were their personal records. Today, a person's personal records can be their income tax returns, their emails, or their telephone bills (including location data).
The whole purpose of the 4th Amendment was to prevent government from collecting this kind of data about people willy-nilly. That's the important part. It doesn't matter if it isn't printed on "paper".
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But the concept that electronic records are considered part of a person's "papers and effects" has already been ruled by some courts.
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After all, they need the location data for billing purposes.
Many people prepay for their minutes. For those customers there is no business reason for the telco to be collecting this information.
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"After all, they need the location data for billing purposes."
I would argue over whether they even need this much... to a degree anyway.
On a typical plan, all they need to know is: "Is it 'native', or roaming?" and "Is it long distance, or local?"
Because most plans only distinguish between home area and roaming, and long distance or local. And some unlimited plans do not even do that. Further, most cell plans don't even distinguish between local and long distance anymore, as long as it is within the U.S.
So the location data in most cases can be broadened to s
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RIght, but if corporations are people, then their business records are clearly "personal effects and papers," no?
The amendment doesn't work if the "person" willingly hands their data over.
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Please no. I know how they'll vote and it will create an absolute prescedent.
Re:LOL Corporations! (Score:4, Insightful)
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That will NEVER happen any time soon since as soon as the next terrorism incident happens, anyone who any way voted against any surveillance program will be hoisted up on a pike in the next election.
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The surveillance is one thing, doing without any oversight is another. It needs to done with a warrant.
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But that's the crux of this. The police don't really have to 'pay for' all this location data. It;'s already collected, and the incremental cost is negligible.
So they ask for it ONLY because it exists, and is EASY to get.
One solution to this may be to make it cost-prohibitive for government to retrieve this data. Maybe set fairly low pricing on a limited number of retrievals, and then crank up the fees to both reflect the true cost of staffing the function, and most important, compensate ME for taking MY
So the Fifth doesn't uphold the Fourth (Score:1)
and the US courts drop another Brooklyn Third
Fourth Amendment (Score:5, Insightful)
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.
- Fourth Amendment to the US Constitution
What? Emails, text messages and other electronic communications are not "papers", you say? Well, "electronic signatures" are taken as just as legal and binding as if it were an actual signature in ink on a piece of paper.
This needs to be taken to SCOTUS, extra pronto.
Re:Fourth Amendment (Score:4, Informative)
You need to read the Commerce Clause and supporting case law, which says that anything having an effect on Interstate Commerce is a business record and not a "Paper" or personal effect.
Bank Statements, emails, and so on, are all fair game.
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You don't have to cross state lines to be considered interstate commerce.
https://en.wikipedia.org/wiki/Wickard_v._Filburn [wikipedia.org]
Wickard v Filburn went further than that. You don't even have to engage in commerce for it to be considered interstate commerce.
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Sadly true.
If only the interstate commerce clause applied only to interstate commerce.
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I agree that it is utter bullshit as interpreted, but the question is not whether it needs to be changed but how we make that change become reality. We can argue shoulds and musts all day long, but until it comes to pass, it is but words.
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Just remember, abuse of the Commerce Clause really got going when FDR found that his New Deal was mostly unconstitutional, and he had to find some new way to justify it.
Which "new way" involved threatening to pack the Supreme Court till they gave in and let him do what he wanted, then using the Commerce Clause to justify...anything.
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Wickard vs Filburn is the case which basically started the bullshit interpretation of the Commerce Clause.
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And the fact that the decision was based on NJ law, not the US Constitution, still doesn't fly because the supremacy clause clearly holds
NJ is free to offer its citizens more protection than the General Government does - that doesn't constitute a conflict under the Supremacy Clause. Properly viewed, the Supremacy Clause only applies to the enumerated powers of the Constitution anyway - it should not even apply in cases where States' powers are being infringed, unless one of the Bill of Rights protections a
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I agree with you on this. That the nature of it being digital does not imply that there are no expectations of privacy. The logic i have heard is that you need to have a third party involved. Since that third party has knowledge the idea of privacy is non existent. therefore they can get their grubby hands on it. However,. If I send a package/letter it involves a third party. Why is that different?
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This needs to be taken to SCOTUS, extra pronto.
Yes, and.... if the SCOTUS ruling concurs with this one, what are you, poor devils of American citizens that you are, going to do then ??
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Well, you are presuming future events which haven't occurred yet, but to answer your question, corrupt dickheads in the supreme court can be impeached by the house and tried by the senate, with immediate removal from office without appeal the penalty following conviction. Look, I know I'm running the risk of being laughed out of the room for even suggesting this, but after all, it is the
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But it's really smart to just roll over and give up, eh, o spineless one? I tell you the recourses that are available, that were provided you by wise and dedicated men, and your response is to ridicule the idea that they might be used. You can take that attitude and shove it. Most people in the world would be glad to have some of those recourses you spit on.
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This needs to be taken to SCOTUS, extra pronto.
Where they can rubber stamp whatever law enforcement wants, extra extra pronto.
Are the papers yours? (Score:2)
What? Emails, text messages and other electronic communications are not "papers", you say?
The question is whether they are *your* papers. If they aren't then the 4th amendment doesn't apply. It is not entirely obvious whether phone records should count as your property nor is it clear whether you have a reasonable expectation of privacy regarding them. (For the record *I* think they should be treated as yours and not available to law enforcement without a warrant - but that's just my opinion) If they are yours, then the question becomes whether the search is unreasonable. But if they aren't
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About you doesn't mean you own it (Score:2)
The papers themselves may belong to Verizon, but this information is about me.
Doesn't necessarily matter if the information is about you unless there is a law giving you specific rights regarding how that information is handled. Just because it is about you doesn't mean you own the information. Like I said, the first question is whether the "papers" are yours. If they are not then you have no standing to challenge others looking at them under the constitution.
Look, technically, the results of my HIV test are just business records to my physician, but no one would argue that the government should be able to access and store that information.
In many places (like the UK) your medical records are explicitly NOT yours. Whether you own the health records is merely a
Sure about that? (Score:2)
Careful what you wish for. Relying on Alito, Roberts, Scalia (and his shadow), and Kennedy randomly flipping his coin to insure your mere human rights is sketchy at best.
The more I think of these a-holes, the more I think of all the 30s era German judges that rubber-stamped the Chancellors' laws.
Unlikely to impress SCOTUS (Score:5, Interesting)
The Court was unanimous in /US v. Jones [politico.com]/ - it's hard to see how they'd backpedal because their concern was over the surveillance nature of modern technology, not merely the source of said data. By their logic in /Jones/, this case's data gathering would also be a search.
I'd feign shock that the 5th Circuit couldn't understand the /Jones/ decision, but it's so much more realistic to believe that those judges just wanted to give government power another bite at the /Jones/ apple.
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I agree with your reasoning. I'm just not as confident as you are in the consistency of the Supreme Court. That said, I think the 5th Circuit has willfully ignored the constituion and the intent of its clauses.
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States are still independent entities with their own judiciary.
People tend to forget that.
Re:Unlikely to impress SCOTUS (Score:5, Informative)
Wasn't the issue in Jones that the police affixed the GPS tracker to the vehicle without a warrant? When you willingly carry a tracking device, the expectation of privacy is entirely different.
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Yeah, Jones is tricky. In fact, after SCOTUS threw out the GPS data, they had a retrial [wikipedia.org], and the prosecution used cell tracking data instead of the GPS data. The district court said that was OK. It never went back up the line to the Supremes, though, because Jones took a plea deal rather than keep fighting.
The problem is that while the justices voted unanimously in Jones, they did so for different reasons. A number regarded the placement of the GPS device as a personal trespass, which would not apply to
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When you willingly carry a tracking device, the expectation of privacy is entirely different.
The NJ Court's opinion is that people *don't* willingly carry a tracking device - that that information is incidental to the provision of the service and not part of the customer/provider bargain.
That's how everybody I know views the service they're paying for. And there's no business reason related to the provision of that service for the telcos to retain nonymous location data either, so it's entirely a governme
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Please read the Jones opinion.
The supreme court ruled the way it did only because the FBI had to encroach upon the vehicle in order to place the tracking device. The court even acknowledged that there are ways to introduce such a device into a vehicle without violating the 4th amendment. There was a previous case where a radio beacon was introduced into a suspect's car by hiding it in a container which he accepted voluntarily from an informant. The court reaffirmed the contitutionality of that type of tr
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For anyone who isn't aware, the 5th circuit is generally taken to be conservative while the 9th is generally taken to be liberal
xbone (Score:3)
So if MS' s XBone records you and saves the data on its corporate servers, it 'clearly' becomes business data and the government can then spy on you without pesky lawsuits or constitutional hassles.
Judge is a twisting cunt and just shafted all Americans big time.
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more importantly anything you store on the cloud that is somehow billed for by someone then it's interstate commerce?
sounds like bullshit.
(technically storing your email and it's access data is quite similar to this data)
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Yep, I have a bad habit of going blabber mouth without reading summary properly (I don't read the article of course!),. ..and "but noted that the state court's ruling was based upon the text of the state's constitution, not that of the federal constitution." So this 5th Court can ignore the constitution? Doesn't sound right.
Hm. (Score:5, Insightful)
Then, in the spirit of an open government, I would like to have all historical location data of all the elected politicians please.
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You know, that's the world we live in. If some politician finds out that his privileges have been nullified and his or his family's travel is now a matter of public record, they'll vote to pull back executive power. Slightly OT, but there was a small town around KC on a highway that commuters used. Their cops routinely wrote spurious tickets and pulled commuters over for absolutely anything and sometimes for made up reasons (touching the yellow or white line, driving too fast, driving too SLOW, in some c
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Preferably visualized in this [www.zeit.de] form.
Not just elected politicians either. Every high-level government worker, for their government-issued phones and pagers.
What is the carriers' position? (Score:4, Interesting)
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I don't know how the hell they can put "it's business" in front of "your rights" but they did. Now all we need to do is start a business that hires folks to walk around neighborhoods, keeping tabs on home address, car tags on the property, time. We don't have to stop at homes either, this could go all the way to businesses, government buildings. And it doesn't have to stop at citizens either, we can do this to police/city vehicles/personnel as well. See the thing to bring to light here is the fact that
Re:What is the carriers' position? (Score:4, Informative)
nothing says they have to
Actually, lots of the Patriot Act and such recent legislation is making them do exactly that. They don't have grounds to oppose a subpoena since it isn't incriminating of 'them'.
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Nothing to lose? You realize the government can lean on companies that don't cooperate right? Make all kinds of things more difficult, more costly, and sometimes even impossible. From spectrum deals to taxes to grants to visa applications, our various federal departments are far too interconnected to claim that they have "nothing to lose" by refusing to cooperate.
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We need data protection laws. They should not be able to share such data without a warrant.
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expectation of privacy (Score:3)
Re:expectation of privacy (Score:5, Insightful)
if you are using a cel phone, and paying a carrier to provide service to your phone, it's a 50/50 relationship. as crappy as it is, you shouldn't have an expectation of privacy.
Hmm, let's apply that mentality to a few other arenas, and see how well it works:
If you are sending a package, and paying a carrier to deliver it, it's a 50/50 relationship... you shouldn't have an expectation of privacy; UPS can just rip open your package and go through it.
If you are traveling, and paying a service to move you (taxi/airline/etc), you shouldn't have an expectation of privacy; Taxi drivers can strip search passengers.
If you use electricity, and pay a service to provide it, you shouldn't have an expectation of privacy; the utility company can go through all your shit to see what you're using the electricity for.
Applied to pretty much any other service available/necessary, that sort of thinking obviously does not fly; so why would it be OK with communications?
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if you send a sealed package, you have the expectation of that package staying sealed. you have no expectation that UPS won't keep track of where they picked up the package, and where it was delivered to; that data belongs to them. you have an expectation that the cel carrier won't read your text (not much of one), but where they pick up the text and who they deliver it to is not data that belongs soley to you.
OK, so that explains tracking in/outbound call origin/destination information... but not location tracking or any of their other questionable practices. Besides, you said that we "shouldn't have an expectation of privacy" when it comes to carrier services in general, a philosophy I not only disagree with, but find incredibly dangerous were it to become the status quo (yea, yea, I know, don't remind me).
you have an expectation that the cel carrier won't read your text (not much of one)
Say hello to 2 years ago [cnn.com]
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If you are sending a package, and paying a carrier to deliver it, it's a 50/50 relationship... you shouldn't have an expectation of privacy; UPS can just rip open your package and go through it.
Actually, this was settled with mail via the USPS a while ago. Stuff inside the envelopes were considered confidential, while any markings on the outside (address, return address, etc.) were not.
I believe this was used to justify the legality of collecting certain types of "metadata" not so long ago.
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If you are sending a package, and paying a carrier to deliver it, it's a 50/50 relationship... you shouldn't have an expectation of privacy; UPS can just rip open your package and go through it.
Actually, this was settled with mail via the USPS a while ago. Stuff inside the envelopes were considered confidential, while any markings on the outside (address, return address, etc.) were not.
I believe this was used to justify the legality of collecting certain types of "metadata" not so long ago.
And if the government could prove to me that the metadata was all they had access to, I probably wouldn't be nearly as upset about it.
However, when pressed they respond "we don't have to tell you," well, that doesn't inspire a lot of confidence. Not to mention, given the track record of the federal government, we'd be stupid to take them at their word.
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Well that's where you and I differ. I don't think having a business relationship with a company is enough to require me to give up my expectation of privacy. I expect them to use my usage data to bill me, not to give to the government.
If the government wants something it should be the de facto standard to need a warrant. They should not be allowed to side step the constitution by having a 3rd party collect the data.
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At the moment (Score:2)
Eli and Jedediah... (Score:5, Insightful)
Shining example of why nothing good lasts forever (Score:5, Insightful)
The moment you write a document like the constitution, somebody is looking for how to game it. Over time they find technicality after technicality that allow them to push the envelope in new ways, until the entire spirit and intent of the original document is so shreded that it barely resembles what it was intended to.
How do we read amendments like the 4th and 5th so narrowly? Is it really ok that minor technological changes allow technicalities to be used to extend government powers in ways never before envisioned?
How does anyone seriously and honestly look at the constitution, then look at what is going on here, and not see that the only reason this doesn't get prohibited under them is minor technicalities that never could have been seen before they happened? Its a violation of the very spirit of the document!
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What we should learn from this is that a constitution needs to be a living document. Perhaps constitutional conventions should be required every 20 years or so.
Instead of having courts arguing over the wording of it, the people should just correct the words. Is "persons, houses, papers, and effects" not clear anymore? Change it. Do we honestly think that nuclear weapons aren't "arms?" Let's just fix that so there's no question.
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The moment you write a document like the constitution, somebody is looking for how to game it.
They're called lawyers, and this idea applies to all written documents.
The judges are supposed to keep that sort of behavior in check, but they are pressured by various forces, including the other two branches of the government as well as the people, to do the popular thing instead of the right thing. Their own biases also come into play, but good judges either try to set that aside, or recuse themselves if they are unable to.
Now, people are businesses (Score:2)
Not only are business people, with the freedom so speech and the ability to contribute unlimited funds to elections, but now, people are businesses with no 4th Amendment rights.
The transformation is complete. The fascist dream of merging corporate power with state power has been achieved *by turning people into businesses.*
That's how they win. They come at you in a way you never imagined.
If it's just business data. (Score:3)
17 People Determine the Outcome for Millions (Score:2)
The court is composed of seventeen active judges [wikipedia.org] and is based at the John Minor Wisdom United States Court of Appeals Building in New Orleans, Louisiana.
Many of the judges were appointed by Bush and Regan. Go figure why this didn't pass :|
(doesn't quite paste correctly from the link so use you imagination)
# Judge Duty station[4][5] Born Appointed Chief Appointed by
71 Carl E. Stewart Shreveport, LA 1950 1994 2012 Clinton
51 Carolyn Dineen King[6] Houston, TX 1938 1979 1999
Exactly... (Score:2)
...because location data was 'clearly a business record' and therefore not protected by the Fourth Amendment.''
Yeah, it is a business record. My business, not yours, assholes.
Question (Score:2)
DROID4 : phone off = no location tracking? I can do without texts from the GF while about my business being an existential threat to the United States.