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Pauls' Revere
06-24-2018, 07:13 PM
https://thinkprogress.org/gorsuch-says-hell-repeal-and-replace-the-fourth-amendment-with-something-terrific-9238f5568313/

[sic] One possible argument is that I own my own cell phone. Any data it provides to the cell phone company is data that my device shared with them. And thus, like the emails I send through gmail, my cell phone’s geolocation data belongs to me and the government needs a warrant to touch it.

But wait! Doesn’t the cell phone company own its own network? The geolocation data exists, not because my device is broadcasting my location directly, but because my device communicates with a cell tower owned by the cell phone company — and the cell phone company knows where I am largely because it knows which of the many nodes on its network my cell phone has pinged. Under this theory, the data belongs to the cell phone company — it is not mine — and so the government could obtain it without a warrant.

The point isn’t that either of these theories are correct. Rather, the point is that Gorsuch’s theory doesn’t offer any more clarity than the imperfect “reasonable expectation of privacy” standard. Indeed, if anything, it offers far less certainty. Whatever else can be said about reasonable expectations of privacy, there are literally thousands of court opinions examining this standard. Those decisions will offer a great deal more legal guidance than the half-baked idea proposed by Gorsuch.

Worse, Gorsuch concludes his opinion by suggesting that the best arguments for protecting the cell phone records at issue in Carpenter is an argument grounded in “positive law” — that is, an argument that such records are protected by state or federal law and not the Constitution itself.

When you strip away all the rhetoric, in other words, the world Neil Gorsuch wants looks a whole lot like Olmstead. State legislatures or Congress can give you privacy rights, but they can also take them away. And the Fourth Amendment will provide little backstop in a case like Carpenter.


Thought this interesting and wanted to share.

Swordsmyth
06-24-2018, 07:42 PM
The question should really be if the phone company has a right to keep a record of your location in the first place, if the data weren't recorded they couldn't volunteer to give it to the government and warrant would be required to start logging the data.

Swordsmyth
06-29-2018, 10:44 PM
Oh WOW. We missed something here guys. Rand says Gorsuch was the best on the court and dissented because he wanted a stronger property rights ruling.


https://www.youtube.com/watch?v=lNvqbNy7hCA



Justice Neil Gorsuch, in his lone dissent, expressed disappointment that the third-party doctrine was not more broadly revisited. Although Gorsuch filed one of the four dissenting opinions (the most written in a single case since Obergefell in 2015), his dissent went farther than the majority and was more like a concurrence on other grounds. The technical reason for Gorsuch deeming it a dissent was that Carpenter’s lawyers did not make the property-based argument Gorsuch favors.

Rather than focus on the reasonable expectation of privacy analysis typically engaged in by the court in recent decades, Gorsuch’s dissent argues that the court should follow a property rights-based theory of the Fourth Amendment. Under that theory, Carpenter had a property interest in his cell phone data. Gorsuch's decision to file a dissent may send a message to future defendants that without inclusion of a property-based argument his concurrence cannot be counted on.

Gorsuch's focus on the property rights argument was foreshadowed by his rulings while serving on the Tenth Circuit. In United States v. Ackerman (2016), Gorsuch invoked property interests in extending Fourth Amendment protections to digital property, applying trespass theory to email. Oddly, in addition to applying a trespass test, the Ackerman court also applied the reasonable expectation of privacy test. Some have theorized that that this was intended to provide a foundation for the tests to be applied as coequals, with the ultimate goal of reuniting trespass theory and the Fourth Amendment.

http://thehill.com/opinion/cybersecurity/394215-gorsuchs-dissent-in-carpenter-case-has-implications-for-the-future-of
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