This is great news, and completely shocking:
The Supreme Court ruled unanimously Monday that law enforcement authorities need a probable-cause warrant from a judge to affix a GPS device to a vehicle and monitor its every move.
The decision (.pdf) in what is arguably the biggest Fourth Amendment case in the computer age, rejected the Obama administration’s position. The government had told the high court that it could even affix GPS devices on the vehicles of all members of the Supreme Court, without a warrant.
“We hold that the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search,’” Justice Antonin Scalia wrote.
In a footnote, Scalia added that, “Whatever new methods of investigation may be devised, our task, at a minimum, is to decide whether the action in question would have constituted a ‘search’ within the original meaning of the Fourth Amendment. Where, as here, the government obtains information by physically intruding on a constitutionally protected area, such a search has undoubtedly occurred.”
In all, five justices said physically attaching the GPS device to the underside of a car amounted to trespassing and was a search requiring a warrant. The majority said “the present case does not require us to answer” whether police may employ GPS monitoring of a vehicle via an already onboard navigation system “without an accompanying trespass.”
Props to whoever can come up with the best excuse for the Obama admin coming out on the appallingly wrong side of this.
PaulW
Fix the blockquote please.
Halteclere
Internet is now broken. That means I have to do real work!
Dexter
Blockquote problem.
CaptainFwiffo
What’s the excuse here? That it’s not searching because the device reports back automatically, therefore nobody’s expending any effort “searching”?
Brian S
I’m going to go all conspiracy theory here and say that the government wanted to lose the case. Because otherwise, why on earth would you tell the Supreme Court “it could even affix GPS devices on the vehicles of all members of the Supreme Court, without a warrant.”
Okay, maybe the government didn’t want to throw the case, but seriously, who thought that was a good thing to say?
eric
simple…because you are driving on public roads, your location is public and you can have no expectation of privacy. Then, as to private roads, look at a Darby type analysis and you get no invasion. I am shocked by the outcome.
rlrr
somebody forgot a closing tag…
Tim H
Not only a police state, but a stupid police state.
Comrade Mary
The entire blog front page within blockquotes? Is this supposed to soften us up for being eventually swallowed whole by Tunch?
slag
@PaulW: I believe the correct response to this problem is: “I go away for five minutes and I come back to find you FPers crayoning up the walls!”
Comrade Mary
Related.
Yutsano
Blog go boom. FYWP.
@Brian S: I think you might be onto something here. Or they honestly thought this was a defensible position. I don’t know which is worse.
(WHY THE HELL DID I VOLUNTEER TO GO INTO WORK EARLY?? GAH!)
Villago Delenda Est
OK, who took a club and knocked out the fascist Fat Tony and put this one who actually read the 4th Amendment in his place?
I want answers!
Sanjuro58
Granted that driving on public roads does not provide an expectation of privacy, but attaching a device to your private property does encroach on your privacy. If they want to track you then then need to do it the old fashioned way and assign some people to follow you around.
jharp
It was all a setup by President Obama. He knows republicans are against anything he is for.
Think Brer Rabbit and the briar patch.
Villago Delenda Est
Also, too, in additon: where’s the edit button? Do we need to send a strike force to West Virginia to kidnap Lily and hold her hostage to get it back?
EconWatcher
@Brian S:
One of the justices probably posed that as a hypothetical, and the hapless lawyer from the Solcitor General’s office had to answer yes–no way to distinguish the situation. I doubt very much this scenario was volunteered.
What’s mroe surprising is that a unanimous Court apparently put itself in the shoes of those being searched and decided it didn’t like it. That’s a concept called empathy. Often in short supply.
Belafon (formerly anonevent)
The excuse I’ll come up with: I am as surprised as the DOJ that the Surpremes ruled this way, thought I bet it took the DOJ lawyer threatening the 1% – hey, we can even attach them to your cars – to do it. Considering the rights police have now, which basically amounted to “your car is a public place,” this ruling is a totally different direction for them.
To go back to my point, I think the only reason this failed is that the Surpemes realized that you wouldn’t have to be on the highway being black for this to happen to you.
dmsilev
The block quote ate the blog!
Test:
Did that closing tag help?
PaulW
No.
John Cole HIMSELF must close the tag. HE MUST, LEST THE WORLD BE DOOMED.
schrodinger's cat
Please feed Tunch, that will stop him messing with the blog. First the Edit button and now the block quote.
dww44
@Brian S: Actually I was going to post the same theory here. That this was just another example of Obama and another of his and his administration’s 11th Dimensional chess moves, i.e. test the limits of executive power and overreach by forcing the Supreme Court to address some of its actions. Insure that they do that by telling them the government has the unassailable right to affix the devices to their vehicles. That was guaranteed to get the justices’ attention.
Re the block quote problem, I am going to promote another conspiracy theory. My internet won’t link to any media site that I normally read and Balloon-juice is virtually the only blog I can easily access. Have AT&T DSL and spent an hour and a half on the phone with them yesterday to see if they would admit there’s something wrong out there between my computer, its modem, and their phone lines, which may very well be waterlogged (lots of rain in the last 48 hours). The person I spoke with did hint at the voluntary take down of sites by those internet entities opposed to SOPA and PIPA, although he didn’t call the measures by name. He couldn’t solve my problem, which is even worse today.
So, perhaps some anonymous groups are trying to let all of us internet users know who’s in charge of our tubes.
aimai
@Brian S:
Yes, perhaps (g-d willing) this is simply a better strategy. Here’s hoping the new method of reverse psychology legal jiu jitsu results in the following arguments:
The government absolutely has a right to Taze all Supreme Court Justices
The government absolutely has a right to enforce anti-sodomy laws on Justice Scalia for getting oral sex from his wife.
The government absolutely has a right to deport the Supreme Court Justices to Gitmo.
The governmetn has a right to demand the Supreme Court Justices produce their long form birth certificates.
etc…etc..etc…
Up until now apparently no one has ever made the “sauce for the goose is sauce for the gander” basic argument for fairness in the application of the law. Novel, but I like it.
aimai
General Stuck
The case is narrow to only include physical invasion of privacy of property. Or, placing a GPS gizmo by police on suspect vehicles. It doesn’t address government tracking when no such device in deployed. the judges said that was for a future case. It seems to me to be pretty straight forward that warrants are needed whenever the state physically trespasses on private property
schrodinger's cat
I is in your blog, messing with the formatting.
-kthxbai Tunch
Belafon (formerly anonevent)
One more excuse: Wasn’t the Constitution set up to have an agressive Executive that was supposed to be checked by the other two branches? Now we know the answer is no rather than 50 different answers.
schrodinger's cat
burnspbesq
Don’t go overboard here, boys and girls.
It’s significant that Scalia’s opinion for the court mentions that there was a warrant granted, but the FBI and the DC cops didn’t comply with its terms. It’s equally significant that Sotomayor’s concurring opinion mentions that the installation of the tracker was done “without a valid warrant” (which is arguably incorrect, but I think we know what she meant to say).
This case does not stand for the proposition that the police can never use GPS trackers. It stands for the proposition that they have to get a warrant in order to use them. Getting search warrants is not terribly difficult.
@ Tim H:
The article doesn’t say whether the argument you are mocking was made in the Government’s brief or at oral argument. The Justices often ask silly hypothetical questions as a way of figuring out the logical end of an argument made in the briefs. If you, as counsel, get fed one of those silly hypothetical questions, you don’t have the option of saying, “with all due respect, Justice So-and-So, that’s a silly question.” You have to answer it.
If the argument was made in response to a hypothetical question during oral argument (which may be verifiable; transcripts of oral argument are often posted on the Supreme Court website), that’s a completely different thing than if the Government actually argued that on brief.
eric
@General Stuck: exactly, since there is no warrant needed to follow the car everywhere it goes or to follow it via satellite. It strikes me that this is a meaningless decision in light of the likely greater use of real time satellite survellance.
Paul in KY
@PaulW: The tag closer must be thrown in the fires of Mt. Doom (by John Cole), else The Dark Lord Tunchron will rule for 1000 years of darkness (and uninterrupted cat treats).
Belafon (formerly anonevent)
Maybe John’s in solidarity with something and decided to go gray.
TenguPhule
Please don’t throw me into that there briar patch, Mr. Scalia!
Remember, the only way to get things done right these days is to make the Facists think it pisses off liberals.
burnspbesq
@Villago Delenda Est:
That’s not fair to Scalia. He’s an ass, but he’s an ass with principles, and this case is an easy call for a committed originalist.
chowkster
TenguPhule
Principled shit still tastes like shit.
The Moar You Know
That explains your ruling right there.
schrodinger's cat
The mighty cat has been fed. Praise the Ceiling Cat and pass the kitteh treats.
Villago Delenda Est
@dww44:
If the problem is the connection from your modem to the dial central office, and the outside plant (that is, the wires that make that connection) is old and hasn’t been maintained properly, then something akin to “waterlogging” may be at fault. But AT&T will have to sort that out for you, because the outfit that owns the wires is probably your local ILEC (Incumbent Local Exchange Carrier), which is most likely the successor to the Baby Bell that had the local monopoly in your area, and AT&T contracts with to provide the physical connection.
It’s not unusual for the outside plant to be decrepit. In my neck of the woods (Eugene, OR) it is not at all unusual for the outside plant copper wire to be exposed to the elements because squirrels have eaten away the insulation protecting them over the years, and outside plant is expensive to replace which of course cuts in on sacred profit, so if they can get away with it, the vile MBA shitstains that run these outfits will just not bother to maintain the wire, especially since data transmissions are more vulnerable to the poor state of the wire than voice, and they can get away with poorer quality lines for voice than data.
Zifnab
Meh. It’s not rocket science trying to guess why the executive branch would side with executive branch enforcement officers in a legal gray area. The FBI probably has a million “good reasons” for why they can GPS any car they want.
This is how the system is supposed to play out. Police claim authority, legislation is consulted, judiciary makes a ruling. If the Obama Admin flips the SCOTUS the bird and issues an executive order amounting to “Disregard and continue it while my party runs cover by screaming
9/11! 9/11! 9/11!Iran! Iran! Iran!”, I’ll get a bit more upset.burnspbesq
@TenguPhule:
Except that in this case, Scalia’s principles led him to the right answer. Right answers don’t taste like shit, they taste like chocolate.
EconWatcher
@burnspbesq:
Agreed. Unlike, for example, Rehnquist, who was completely results-oriented in his rulings, Scalia actually does have a principled way of reading the Constitution and almost always sticks by it. Bush v. Gore was an anomaly for Scalia. A major, historical, appalling anomaly, but an anomaly nonetheless.
Culture of Truth
It’s worth noting that Alito with Ginsburg, Breyer and Kagan, wrote a separate opinion, stating that the monitoring itself was an illegal search, rather the act of attaching the device to the underside of the person’s car.
burnspbesq
The cops got a warrant. They just didn’t execute it in accordance with its terms. You and I and all nine Justices of the Supreme Court may fell that not executing a warrant in accordance with its terms is a big deal, but the cop who thinks that has yet to be born, and prosecutors back up cops, except in cases of egregious misconduct, which this wasn’t.
RossInDetroit
So the cops can still follow you around, but they can’t sit in the back seat and take notes on where you go. That’s a win, I guess.
trollhattan
In a vaguely related matter, Rand Paul(R, praise be unto Ayn) doesn’t want the TSA inspecting his junk.
http://www.washingtonpost.com/blogs/federal-eye/post/sen-rand-paul-declines-tsa-pat-down-is-escorted-from-security-checkpoint/2012/01/23/gIQAYGAALQ_blog.html?hpid=z3
The Moar You Know
@dww44: Nothing so nefarious. Your local DNS server has taken a shit. You can still get to Balloon Juice because the path is cached, probably because you hit the site a lot. If you know how, change your DNS server to Google’s:
8.8.8.8
-or-
8.8.4.4
Good luck with that.
Joel
I will say, threatening to track the Supreme Court Justices by GPS is a half-hearted argument, at best. Or maybe whole-hearted and bone-headed?
Culture of Truth
The argument is that you do not have a reasonable expectation of privacy when you are driving around in public.
Everyone agrees that the police do not need a warrant to watch your car as it drives by on the street. That makes sense. So the logic is, they could oberve you 24 hours a day, if they so chose and with enough manpower. Ergo, they can do with technology what they could with manpower. That is the current law of the law in most places, even under this current ruling (although attaching a device is out, which is welcome news).
burnspbesq
@Culture of Truth:
Which doesn’t make a lick of sense to me. There is no doubt that the cops could have set up a 24/7 surveillance team to follow the defendant wherever he went, and could have done that without a warrant. Doing the same thing electronically logically can’t be a violation of the defendant’s Fourth Amendment rights.
It’s only because the installation of the GPS device invades a zone that has always been protected by the Fourth Amendment (car = effects, as Scalia pointed out in his opinion) that there is an issue here.
I have no doubt that if the cops had used an unmanned aircraft rather than a GPS tracker, the case would have come out the other way.
ant
good news.
yo cops, get a fucking warrant, eh?
shit aint hard.
Ron
@burnspbesq: The “getting a warrant first” is a huge distinction.
Villago Delenda Est
@trollhattan:
Well, obviously, there is a problem here, because Rand Paul doesn’t, you know, LOOK like a terrorist.
Even though in reality he’s an extremely destructive one.
smelter rat
But but but…if you’ve done nothing wrong, being tracked shouldn’t be an issue, ammiright?
eric
@EconWatcher: nonsense, both of you. Heller is another example of him leaving the text of Constitution. He has always been results oriented. He chooses the historical evidence that favors his reading and discounts the counter evidence. That selection is dictated by results. Plus, the selection of Originalism as THE hermenuetic method of constitutional interpretation is results oriented because, on the whole, it will give the decisions he wants to see because the status quo ante of revolutionary times suits his own political and financial interests.
Lojasmo
@Yutsano:
To troll facebook on the public dime? ;)
Seriously, though, I fail to see how putting a GPS device on the OUTSIDE of a car violates the reasonable search clause.
Who dissented?
trollhattan
@Culture of Truth:
Interesting times ahead with the proliferation of licence plate cams gathering travel data on everybody. (In California it’s illegal to cover–even clear covers–or otherwise alter one’s plates, at least in part to aid the use of red light cameras.)
Applejinx
This, absolutely. It seems like an intentional dive to me. Did they really say that? It’s almost too obvious. It would be so easy NOT to say that, or to cite ‘criminals’ and all that stuff.
Fucen Pneumatic Fuck Wrench Tarmal
this is easy. now that the gop has caught on to the acorn scam, obama is going after the surveillance vote. did you know that “fuzzy dunlap” is one of the most common names on the voter rolls in every battle ground state? you win the fuzzy dunlaps, you win the white house.
burnspbesq
@eric:
Check back with us when Scalia votes to uphold the individual mandate, based on his concurring opinion in Raich.
Villago Delenda Est
@burnspbesq:
Heck, the case never would have come before the Supremes, because observation like that has never been illegal, the thing now is technology is providing the means to conduct that sort of observation at lower and lower resource costs. You’d only tail someone you were willing to devote the resources to tracking to because probably cause was sufficiently high enough for a payoff in terms of getting a prosecution. When surveillance like this becomes trivial in terms of resources to pull off, that’s when everyone and their mother needs to worry. Logistical constraints falling by the wayside allow for more and more surveillance.
Joel
Gingrich is now an 84-16 favorite over Romney in Florida, per Nate Silver.
burnspbesq
@Lojasmo:
Nobody. The four justices who signed Alito’s concurrence would have gone farther than Scalia was willing to go in protecting suspects’ rights. Go figure.
Baud
Um, it’s their job. We have an adversarial court system, and in that system it’s the administration’s — any administration’s — job to represent law enforcement before the courts, especially on an unresolved issue of constitutional law. There are exceptions, but they are exceedingly rare.
handsmile
Evidently the Court doesn’t approve of monitoring devices on its cars or in its courtroom. Certain principles must be upheld.
billiecat
Scalia’s opinion is fairly narrow, only addressing a physical occupation of space as a unreasonable search without a warrant. He was able to analogize it to 18th Century practices (a constable hiding under your barouche, m’lud?) and so avoid having to figure out what to do about all this new-fangled technology. When you can frame things that simply for him, Scalia’s actually not bad on civil liberties, as long as there’s no gay sex involved (a la Lawrence). Remember, he wrote the opinion holding that anti-flag burning statutes were unconstitutional.
billiecat
almost forgot, he also nixed the used of heat sensing cameras to spot pot growers. Thank god they weren’t busy sodomizing each other, or he’d have had a dilemma on his hands.
catclub
Is there a huge hole, in that this ruling only forbids placing a gps tracker on the car by the police without a warrant, but if the car already has a gps tracker placed there by the manufacturer, then they are again good to go, since no trespassing is required to place the tracker?
They just have to coerce ONstar into giving them access?
And most corps are fully into giving the FBI whatever it wants. (See ATT and big pipe room for NSA.)
burnspbesq
@Villago Delenda Est:
Maybe yes, maybe no. The dynamics of search-and-seizure cases are a little funny. Defendants have huge incentives to exhaust every appeal, because they are typically looking at major jail time. And the biggest constraint against going all the way, the cost, is typically irrelevant to them because they are being represented for free, either by a public defender’s office or by a major law firm looking to polish its pro bono cred. Further, if it’s the government that loses in the lower courts, there is significant internal pressure to appeal, and the only constraint is the Solicitor General’s assessment of where he or she wants to spend his or her limited capital with the Court.
Fucen Pneumatic Fuck Wrench Tarmal
@Baud:
you don’t watch attack ads much?
probably good governing, but bad politics.
taylormattd
Apparently you are writing about this after getting an enraged twat from the frustrati. The idea that this had anything whatsoever to do with Obama is laughable. Every single law enforcement agency, whether it be federal, state, or your local municipality have been saying for years that gps searches without warrants were permissible under the 4th Amendment. Anyone who takes issue with the justice department defending such a practice, and then assigns some nefarious intent to Obama is just a fucking moron with an axe to grind. But what else is new I guess.
Baud
@Fucen Pneumatic Fuck Wrench Tarmal: Who’s going to run the attack ad on this issue? Gingrich?
It would have been worse politically if they had won before the Supreme Court — Axelrod and Plouffe are pretty happy campers right now.
Aris
“Props to whoever can come up with the best excuse for the Obama admin coming out on the appallingly wrong side of this.”
ABL around?
cathyx
I’ve got the winner right here. In his 11 dimensional chess game, Obama wanted a solid ruling by the Supreme Court against this ability, by pretending to be for it in order to take it to the highest court. As proof of his intent that he is against it is the mention of being able to surveil the highest court members without a warrant, knowing they would object to it.
JGabriel
Wired:
John Cole @ Top:
I can tell just by looking at him that Justice Roberts is a Manchurian Terror Jurist.
Also, too, it can only benefit society if the Obama administration can prove Scalia, Thomas, or Alito are terrorists.
Do I win?
.
Tokyokie
@Baud: And I’d hasten to point out, the cops’ action and the defendant’s trial both occurred during the Bush administration. Obama’s DOJ is stuck having to justify what the Bush DOJ did.
Culture of Truth
On the flip side, some courts have ruled that attaching the is not a search, while others have ruled that observing 25/7 is a search. The court took the case to resolve these differences.
Villago Delenda Est
@catclub:
There is definitely that. Most of the major telcos could not comply fast enough with the deserting coward malassministration’s request to execute FISA surveillance without the need of of a nearly always granted FISA warrant.
The catch here is that not everyone has a vehicle with ONstar, so they need to put their own bug on that beater Dodge that they want to track without a whole lot of man hours devoted to it. Again, it’s an issue of surveillance technology becoming cheap enough to deploy routinely rather than expensive enough to deter saving that sort of scrutiny for the cases with the highest probable cause and prosecutorial payoff. Oh, yes, and the entire issue of going out and getting a warrant, and making that sort of institutional investment in the entire thing.
Without it, you’ll have cops using these bugs to track people casually for shits and grins or stalking and entrapment.
Lojasmo
Funny. Though I am pleased with the result, I disagree with the ruling. Cognitive dissonance…how does it work?
burnspbesq
@taylormattd:
That must truly be a sight to behold.
GregB
I am shocked to see an opinion where Alito has joined the liberal minority in an opinion.
Jeepers.
Mike Goetz
Scalia is the guy who said attaching listening devices to the walls of houses by suction cups is not a “search” because it doesn’t breach the wall; tacking or nailing the device to the wall is a search because the nails intrude into the physical space of the house.
Just a sense of how wierd and arbitrary 4th amendment jurisprudence can be.
burnspbesq
The law of search and seizure has been going in the wrong direction ever since Rakas v. Illinois in 1976. It’s nice to win one for a change.
EconWatcher
@billiecat:
Yes, Scalia can be a brilliant prose stylist on a good day, but his dissent in Lawrence v. Texas sounded like the rantings of any random antigay wingnut on the internet. He actually referred ominously to “the homosexual agenda”–in a Supreme Court opinion. They’re after your kids, you know. (He didn’t say the latter. But I felt like it was implied.)
burnspbesq
@Mike Goetz:
No shit. Remember the case where the Supremes said that you have a reasonable expectation of privacy in the contents of your trash cans while they are in your back yard, but they become fair game when you wheel them out to the curb?
Culture of Truth
@burnspbesq:
The DC Circuit held otherwise, because it could reveal the totality of a person’s lifestyle.
Gust Avrakotos
Ha, Scum Bag Not Republican Cole channeling Not Republican Greenwald this morning. You are a piece of shit Cole. But you already know that.
KG
@Mike Goetz: and that’s basically what he said here. The government conceded that it didn’t comply with the warrant, so it’s only argument was that a warrant wasn’t needed.
Fourth Amendment jurisprudence can be incredibly strange. This is one of those examples, because if they had just put a tail on the guy, they wouldn’t need a warrant… Which, I’m guessing, was the government’s logic.
Culture of Truth
Don’t forget cell phones have GPS and cell tower triangulation and people tnd to carry them wherever the go.
[ cue spooky music ]
JWL
“Props to whoever can come up with the best excuse for the Obama admin coming out on the appallingly wrong side of this”.
The Court’s decision is rendered superfluous by the simple fact the government will surveil electronically in any event, and with impunity, no matter which party controls the government. That rude truth trumps all– the judiciary is no longer part of the equation. Acknowledging as much, the Obama administration chose to make a thinly veiled attempt to justify electronic surveillance, before the very branch of government it is otherwise prepared to ignore. If busted, the president will point to his argument, even as he wraps himself in the cloak of national security in justifying his administration having broken the law. His argument before the Court is simply a preemptive strike against those inclined to insist that laws being obeyed.
Gust Avrakotos
Here’s a ring tone for ya Cole. Stay….urrrum classy.
http://www.barackobama.com/ringtone?utm_source=content&utm_medium=twitter&utm_campaign=20120121_bo_tw_ringtone
Catsy
@eric:
This is entirely orthogonal to the issue being considered in this case.
The police can watch you. They can follow your car. They can, if they have access to the resources, use satellites to track where you go. None of this constitutes a “search”, precisely because of the point you raise. These things do not and should not require a warrant.
What they cannot do is physically intrude upon and attach a device to your vehicle–without a warrant.
This seems a nontrivial distinction to me.
burnspbesq
@Culture of Truth:
That would be the same DC Circuit that has spent the last three years pretending that the Supremes didn’t mean what they said in Boumediene about giving Guantanamo detainees a meaningful opportunity for habeas relief.
I am decidedly not a member of the DC Circuit Fan Club.
dww44
@Villago Delenda Est: Thanks very much, and the Baby Bell (no longer independent) was the one from whom the DSL was purchased a few years back. You are probably on to something about the state of the lines and the propensity of squirrels to eat into them. We’ve actually had the power company replace theirs a few years back for the exact same reason, flickering lights. Heavily wooded suburban area and I feed the birds, which means I also feed lots of squirrels.
But, it’s awfully ironic that the sites I cannot connect to are mostly media ones: Newspaper, teevee, and the like.
Catsy
Also too, the Ballon Juice site hamsters appear to be struggling this morning–I’m getting a lot of database errors, timeouts, and similar assorted fuckery when trying to read or especially post.
Culture of Truth
The government’s logic was also since the underside your car is open and visible to the general public, (provided they are crawling on the ground) you have no expectation of privacy there. Dubious, but other courts have bought it.
wasabi gasp
portal chess
Villago Delenda Est
@burnspbesq:
Obviously, they need to offer some incentives, like a funny hat or party favors, or coupons of some sort, to persuade you to join!
Gust Avrakotos
Of all the stuff Cole could spew on today and he chose this. No surprise from Not Republican Cole not concern trolling about not firebagger issues.
Kola Noscopy
Clearly, John, the Obama admin was merely pushing the authoritarian, security state position on this as a means of cajoling the court into ruling AGAINST them and thus affirming the freedoms they hold so dear for us all to have and enjoy.
Kind of a pro-active, devil’s advocate sort of thing, don’t ya know…
burnspbesq
@Villago Delenda Est:
I was thinking more along the lines of a toaster or an iTunes gift card. I may be easy, but I’m not cheap.
Danny
Easy:
They presented a weak case for the wrong position to SCOTUS on purpose – one so bad they knew it would be rejected. Mission accomplished with no risk of republican grandstanding. Eleven dimensional chess!
Mike Goetz
@burnspbesq:
Although I seem to remember if you leave the cans open, they can look into them from a helicopter even if they are in your back yard. It all has a bizarre logic to it.
Villago Delenda Est
@dww44:
Yeah, I should have added that if you can get BJ to come up reasonably well, but other sites not so much, your hardware connection is probably the last place I’d look. Hardware problems should make all your surfing lousy, not selectively by site, unless there’s some specific plugin running on the site that needs an optimal connection to work right.
Chances are good that something strange is going on at the site you’re trying to connect to, some coding malfunction in the HTML or in some plugin and/or the content the plugin accesses. Or it interacts poorly with something running on your computer, like say a video driver, or there’s a browser issue. Lots of things to go wrong, lots of things to rule out.
billiecat
@EconWatcher: I know! It’d be hilarious if it wasn’t getting quoted by NOMbots and other deadenders. Have to wonder sometimes about Nino’s time as a choir boy.
Culture of Truth
You’re never getting the Mickey Mouse hat with that attitude.
srv
Apparently the liberals AND Alito wanted to extend it to cell phone tracking.
That would have major implications for certain agencies – cellular location data is believed to be liberally unencumbered (all those protesters cell phones make a sweet cluster, if you were into COINTELPRO).
dww44
@The Moar You Know: Thanks. I will save your advice and instructions for my computer guy (whom I pay to help me resolve tech issues) He actually said sort of the same thing about repeatedly accessing a site makes one more likely to be able to get it. We agreed that I should muddle along until midweek when things are supposed to dry out.
FlipYrWhig
I’m with Zifnab and others above. The executive branch wants, and argues for, executive power. It’s not a double bankshot lose to win thing or any game of chess on any number if dimensions. This is the default position and unsurprising to anyone but paranoid Johnny-come-lately “civil libertarians.”
eric
@Catsy: to me it is a trivial distinction, insofar as there is we are really only arguing about convenience and (possibly) cost to law enforcement. I am not a fan of current 4th Amendment jurisprudence, but this would have been one of the less offensive outcomes, had it gone the other way precisely because there are other avenues available to law enforcement. I am not unhappy with the decision, but I am surprised.
Mike Goetz
Aside from all this Fourth Amendment hair-splitting, can we all agree that this case is entirely about Obama and how terrible he is for liberal priorities?
I knew we could.
28 Percent
I think the only way you can excuse this on the O-stration’s part is to say that eventually, a justice department was going to want to do this, and the only way you’re going to get this SCOTUS guaranteed to see it as a dangerous encroachment on Our Freedoms(TM) is if it’s a Demonocrat who wants to do it. If W had asked SCOTUS for this, chances are that Scalia would have thought it was a necessary law enforcement tool to fight the war on terror (or if terror was out of the news cycle for a microsecond, the war on drugs) and Thomas would have been checking for what Monroe thought about GPS.
Or it could just be that Obama’s concerned about collective rather than individual civil liberties. So he’s all about empowering disenfranchised groups, but the most he’s going to do about law enforcement overstepping on your personal ass is to say that the officer in question acted stupidly, and when he gets challenged on that he’s going to kumbayah it until it goes away.
Kola Noscopy
@Kola Noscopy:
Holy shit, I should have read this thread before posting. But even I didn’t imagine that the Bots here would take their fascist leanings to such an extreme as to render my mocking comment redundant.
Oh well, live and learn…
Kola Noscopy
@FlipYrWhig:
Speaking of Fascist Bots…
WaterGirl
@EconWatcher:
What’s the saying? Now we know what you are, we are just haggling over the price? (or how important something is to him, whether it is based in law or not)
I don’t think any of the justices who voted with the majority on Bush v. Gore are fit to serve on any court, let alone the highest court in the land.
NCSteve
Oh, for Christ’s sake. This is like people who demand that criminal defense lawyers explain how they can live with themselves defending guilty people or demand to know how the ACLU can stand to defend Nazis.
DoJ’s job is to take the cops’ side in criminal cases. The Solicitor General’s job is to take the government’s–including the cops’–side in arguments before the Supreme Court. It’s their job. It’s what they do. And they’re ethically bound to make the best argument they can from the facts and existing law.
I know you non-lawyers have trouble with the concept, but our entire judicial system is predicated on the concept that law should only get made by courts when there are (at least) two sides with competent counsel doing the very best they can to advocate their client’s position. That’s why court’s don’t issue advisory opinions or entertain “friendly law suits” and sanction the shit out of parties they think are colluding.
It’s not a political decision. Instances in which the politicians order the government’s lawyers to refuse to represent a government agency in an appellate case, and should be, incredibly rare. This is how our legal system works. Without two sides to argue them, opinions don’t get written and law applicable to everyone doesn’t get made.
smintheus
A standard cinematic device will be lost, and with it thousands of good paying jobs in one of America’s top industries.
Tractarian
Yeah, I can’t get all worked up over the Obama Administration defending the cops (and losing). Call me an Obot; whatever.
Keep this in mind, though: Had the Administration refused to defend the cops, do ya think there might be a small possibility that Scalia would have taken the other side?
Someone once said: “today’s conservatism is the opposite of what liberals want today: updated daily”
Not saying the administration did this on purpose … but why take the very rare step of refusing to defend a government agency when you don’t want to politicize the issue?
FlipYrWhig
@Kola Noscopy: I have no issue with people saying they like the ruling, or believe in narrower powers for the executive branch. Great, go to town. It just happens to have nothing to do with OH NOES I CAN HAZ BETRAIUL?! of the kind the would-be liberal blogosphere enjoys propagating. All executive branches under all presidents want to claim the maximum power possible. The legislature and the judiciary provide what could be called “checks” and “balances.”. That’s how it works. That’s how it was designed to work. If you are the president, you want the president and the executive branch to have maximum power. If you are a legislator, you take a different view. If you are a private citizen, you take a different view. But finding these points of conflict to be ideologically surprising is an exercise in willful ignorance and faux shock.
Tonal Crow
The best part of the decision is where all the justices (!) accept that the courts must
(Op. of the Court at 6; Alito et al concurrence at 3). This could mean that the Court has adopted the idea that, even as technology changes the kinds of personal information that exist, and the ways government can access them, the overall “amount” of privacy against government must not be shrunk below that existing at the 4th Amendment’s adoption.
Interestingly, the Opinion of the Court goes even further, arguing that 4th Amendment jurisprudence
(emphasis in origina) (Op. of the Court at 10-11).
Color me very pleasantly surprised. And loving the ACLU even more than usual, which is one hell of a lot.
Michael
Obviously a lot of people here have some knowledge on the issue, but I thought I’d give a more historical run-down…basically, up until a 60’s case, Katz v US, 4th Amendment protections were very much anchored in common law trespass jurisprudence.
Katz dealt with cops putting a listening device on the exterior of a phone booth they knew was often used by a target of their search. The argument was that they could eavesdrop on those convos all they want, as the installation on the phone booth did not constitute any sort of trespass. The SCOTUS blew that up, and said that, (a) when someone has a subjective expectation of privacy, and (b) when society recognizes that expectation as reasonable, then any government impingement on that expectation is a search within the meaning of the 4th amendment. This standard brought 4th Amendment jurisprudence into the modern era somewhat.
The government and to some extent the concurring justices want the Katz decision to be read as replacing old trespass-centered 4th amendment thinking. The gov’t says, “hey, you don’t have a reasonable expectation of privacy in the exterior of your car – its exposed to the public all the time! So of course we can stick something on there. And also, you’re driving around in public! Duh. No expectation of privacy there either. Ergo, no search.” And they had actually a lot of law backing them up (there were cases where gov’t took paint scrapings off a car for example without a warrant, no search found – no expectation of privacy in the exterior of the car).
The controlling opinion in the case, however, basically said that Katz simply added to trespass-oriented approaches, not repudiated or replaced it. So, for electronic surveillance that requires no physical invasions or installation, we will still be looking at expectations of privacy and their reasonableness and such.
Basically
Jason Bylinowski
Don’t hate the player, hate the game. That’s what they would say.
In government land, power is life, and the jockeying of that power is the dynamo that sustains that life. Obama’s people are going to do what they are going to do in order to secure, maintain, and extend the reach of the presidency. That’s their mission, and it’s the mission of every president’s team. I don’t think their stance is some sort of reverse-psychology. They might have known it would be shot down, and probably they are cool with that. Lot of stuff gets shot down, it’s just part of the game. But they are going to get all the mileage they can out of stances like this, because if it happens to make it through the filter of the supreme court, well then hey, that’s a win for Team Obama. And more importantly it’s a win for the team, who can then put another bullet point on their resumes and look forward to a long career in civil service, or whatever it is these people dream of.
Silver Wolf
Reverse Psychology
Samara Morgan
Props to whoever can come up with the best excuse for the Obama admin coming out on the appallingly wrong side of this.
hes just testing Roberts brazenness. it was basically a privacy sting operation.
Matt McIrvin
Excuse? None. Reason? They’re in power. It’s hard to get the executive branch to actually give up executive power. The rest of us have to take it away if we don’t want them to have it.
It reminds me of the line-item veto. I don’t think there’s a single President of any party who hasn’t wanted the line-item veto. From the President’s perspective, the absence of it puts him in an absurd box all the time. But when Congress actually gave it to Bill Clinton, I think the Supreme Court was right to smack it down.
Tone In DC
@schrodinger’s cat:
Stop it, I can’t get soda on this monitor.
Peregrinus
@General Stuck:
I wanted to comment on this issue – the most interesting part to me is that the majority here took a very narrow view of this particular case (saying that using an already-installed onboard navigation system was for a separate decision) in a court that has been taking really, really wide views of other cases, like Citizens United or Morse v. Frederick.
Also, Antonin Scalia defending civil liberties, at least to me, somehow seems hilarious to me.
Southern Beale
Juanita Jean makes a really valid point about this, though. Apparently drug dealers have more rights than women seeking an abortion.
David Koch
This is an odd decision.
It goes against the past 30 years of rulings.
The court has previously ruled that car phones don’t have a reasonable expectation of privacy.
The court has previously ruled you can search a car incident to an arrest without a warrant or even probable cause.
Obviously, you can conduct surveillance of a car without a warrant.
The court has issued dozens and dozens of rulings against reasonable expectation of privacy in your car.
Yet, they now find a tracking device, that can easily be duplicated by a police helicopter, too much? It’s certainly inconsistent, if not odd.
Brachiator
@burnspbesq: RE:It’s worth noting that Alito with Ginsburg, Breyer and Kagan, wrote a separate opinion, stating that the monitoring itself was an illegal search, rather the act of attaching the device to the underside of the person’s car.
Some techies are reading this as suggesting that Alito would say that the cops could not use the “Where’s my iPhone” or similar features to track an individual without a warrant and probable cause.
Sotomayor’s opinion goes a little further, even though it has not impact on the current case, but could point towards future battles.
FlipYrWhig
@Brachiator: IANAL but it seems like we’ll probably have to have a whole slew of privacy-related cases for the wireless era.
James King
The idea that this went anywhere near Obama is ridiculous. Holder probably gave approval, because he’s AG, but unlike the liberal internets, Obama isn’t minutely scanning every single thing done by the federal bureaucracy because he’s *too busy running the country*, not to mention running for re-election. If you want to attack somebody for appealing the decision, perhaps Eric Holder is a better target?
And I think that, on the subject of Bush v. Gore, Scalia realises at least subconsiously that it doesn’t really stack up with his judicial philosophy. I saw him speak last year, and he gave a pretty robust and eloquent defence of Originalism for twenty minutes. He was similar when dealing with most of the questions, but when someone raised Bush v. Gore, he got a bit shirty and whined that it was ten years ago, and couldn’t you get over it please?, slightly contradicting his previous argument that 30+-year-old SCOTUS cases, starting with Roe v. Wade, should be overturned.
Brachiator
@FlipYrWhig:
Oh, yeah. And I think there may be cases in which a person has willingly given up his or her privacy to all kinds of social media products and services, and then gets bit in the ass by legal authorities.
If you “Like” the cops, can they cull information from your Facebook page?
rea
Look, the Justice Department has at its core a group of professional prosecutors. Arguing against suppression of the evidence in a case like this is what a professional prosecutor does.
They had some caselaw on their side–the Courts of Appeals were split on the issue–it’s not as if they were making a “frivilous” (in the Rule 11 sense) argument. This was simply not a situation in which a professional prosecutor would think to confess error.
We all got angry, and rightfully so, when the GWB Adminstration tried to replace key members of the Justice Department’s staff with rightwing ideologues. Well, but defending this case is the kind of decision you get when you leave the professionals alone to do their jobs.
I doubt Obama had anything to do with the matter. If he did, he shouldn’t have.
rea
So, do I get props? :)