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.
[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.