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View Diary: Is NSA Getting A Pass On The 4th Amendment? (22 comments)

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  •  What I found interesting (5+ / 0-)
    Recommended by:
    CenPhx, Einsteinia, aliasalias, quill, koNko

    is that most of the supposed liberals on SCOTUS took what appears to be a contrary civil liberties position. That would argue against the notion that the sole problem is too many conservatives on the courts.

    •  That's not the way I read the dissent's position (6+ / 0-)

      Scalia and the majority decision was a narrow one, based on a trespass into/onto property. This resurrects a test that was done away with or at least made more useless with the test for "reasonable expectation of privacy". The dissent, and the more liberal justices, decided the case based on upholding this test and not the more limited property trespass test. Thus the difference between the two positions can be seen as another chapter in the war of Scalia's strict originalism (when it suits his purposes). At the very least, the Jones case shows that the entire court has a floor it will not drop below in 4th amendment cases. Its especially cool that it turned out this way when the government was asking the court to decide the case based on how the information in question was voluntarily shared in public by the defendant.

      But more than that, Sotomayor's concurrence specifically calls into question the holy grail of NSA defenders, that whatever information you turn over to a business is automatically fair game to the government. That's a big deal.

      The great enemy of the truth is very often not the lie, deliberate, contrived, and dishonest, but the myth, persistent, persuasive and unrealistic. --John F. Kennedy

      by CenPhx on Sun Sep 22, 2013 at 11:19:24 AM PDT

      [ Parent ]

      •  I am sure that issues as complex as these (3+ / 0-)
        Recommended by:
        CenPhx, quill, koNko

        can be read more than one way. To me the important point is applying an amendment that speaks in the language of physical search and ceassure to rapidly changing digital technology is not an obvious and simple matter.

        •  Agreed! (3+ / 0-)
          Recommended by:
          Richard Lyon, quill, koNko

          In some ways, this case felt like the justices were starting to stake out their fighting positions for just that question: how to adapt the 4th amendment protections to modern tech. They could've tried to tackle that question here and just dipped their toes in.

          And I think the groupings of justices will most likely change on the next 4th amendment case. I think it would be really great if the whole court were to start considering the issue from the perspective Sotomayor outlined.

          The great enemy of the truth is very often not the lie, deliberate, contrived, and dishonest, but the myth, persistent, persuasive and unrealistic. --John F. Kennedy

          by CenPhx on Sun Sep 22, 2013 at 12:03:52 PM PDT

          [ Parent ]

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