Woo!
http://online.wsj.com/articles/high-court-police-usually-need-warrants-for-cell-phone-data-1403706571
QuoteHigh Court: Police Need Warrants to Search Cell Phone Data
Unanimous Supreme Court Says Privacy Interests Outweigh Police Convenience
By
Jess Bravin
connect
Updated June 25, 2014 10:47 a.m. ET
WASHINGTON—The Supreme Court ruled Wednesday that police generally must obtain a warrant before searching mobile devices after arresting someone.
The court, in a unanimous ruling by Chief Justice John Roberts, said both the quantity and quality of information contained in modern handheld hand-heldis constitutionally protected.
Chief Justice Roberts rejected law-enforcement arguments that cellphones fell under a longstandlong-standingn to the warrant requirement that allows police to search the contents of suspects' pockets to make sure they don't carry weapons or destroy evidence.
"Modern cellphones are not jaren'tther technological convenience," Chief Justice Roberts wrote. "With all they contain and all they may reveal, they hold for many Americans 'the privacies of life,'" he wrote.
"Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant," the chief justice added.
Lower courts had been split on the question, and the justices themselves have been grappling with the bounds of privacy in the digital age, sometimes tilting toward government, other times toward the individual.
Wow. That's not the kind of ruling you expect from this Supreme Court.
Seedy disapproves.
Quote from: DGuller on June 25, 2014, 10:14:44 AM
Wow. That's not the kind of ruling you expect from this Supreme Court.
Yep. I am amazed it was unanimous. A nice victory.
Oh well, now the cops can just through NSA instead. ;)
Quote from: DGuller on June 25, 2014, 10:14:44 AM
Wow. That's not the kind of ruling you expect from this Supreme Court.
No kidding. It seems much to sane and obvious.
Quote
"Modern cellphones are not jaren'tther technological convenience," Chief Justice Roberts wrote.
Damn good point.
I thought there were good arguments on both sides and am suprised by the unanimous decision.
Quote from: derspiess on June 25, 2014, 10:18:38 AM
Seedy disapproves.
Yes, I do.
QuoteModern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse," Roberts wrote.
Oh, bullshit. Scrolling through the directory of a suspect's cell phone found on his person is no different from thumbing through his little black book. Next time turn on the 4 digit security code before you get arrested.
Although I liked Clarence Thomas's quote during the arguments--
Quote
I get it.
CALLED IT
You are an absolute Kreskin for remembering my arguments on the topic in the extensive discussion thread we had on it just a few months ago, dermemory.
Quote from: jimmy olsen on June 25, 2014, 10:03:55 AM
Quote
Chief Justice Roberts rejected law-enforcement arguments that cellphones fell under a longstandlong-standingn to the warrant requirement that allows police to search the contents of suspects' pockets to make sure they don't carry weapons or destroy evidence.
Does law-enforcement even try anymore?
Quote from: CountDeMoney on June 25, 2014, 11:17:33 AM
You are an absolute Kreskin for remembering my arguments on the topic in the extensive discussion thread we had on it just a few months ago, dermemory.
I don't recall any such thread. I'm pretty sure I never read it. I just know that SEEDY HATES FREEDOM
I stand firmly with Seedy. What a dumb decision.
Quote from: Barrister on June 25, 2014, 12:11:12 PM
I stand firmly with Seedy. What a dumb decision.
Yeah how idiotic that the Constitution should impact law enforcement. It is not like it is relevant to our legal system in anyway.
Quote from: Valmy on June 25, 2014, 12:15:09 PM
Quote from: Barrister on June 25, 2014, 12:11:12 PM
I stand firmly with Seedy. What a dumb decision.
Yeah how idiotic that the Constitution should impact law enforcement. It is not like it is relevant to our legal system in anyway.
QuoteThe 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
SInce it talks only about unreasonable searches, clearly some searches are reasonable.
It has been held for a long, long time that upon arrest police are entitled to go through someone's pockets. As Seedy says if you have a little black book police can go through it - so why not a cellphone?
Jesus Christ, why not just wall the whole country and call it gaol?
Escape from New York is a documentary to Beeb.
Quote from: Barrister on June 25, 2014, 12:19:00 PM
SInce it talks only about unreasonable searches, clearly some searches are reasonable.
It has been held for a long, long time that upon arrest police are entitled to go through someone's pockets. As Seedy says if you have a little black book police can go through it - so why not a cellphone?
Valmy just doesnt do moral outrage well in the off-season. :P
I do find it iironically that Roberts elevates these digital devices to a plateau beyond other legally-defined technology, considering this is the guy with the very analog opinion that, when it comes to the issue of campaign finance, the only kind of political corruption is
quid pro quo corruption.
Quote from: Barrister on June 25, 2014, 12:19:00 PM
Quote from: Valmy on June 25, 2014, 12:15:09 PM
Quote from: Barrister on June 25, 2014, 12:11:12 PM
I stand firmly with Seedy. What a dumb decision.
Yeah how idiotic that the Constitution should impact law enforcement. It is not like it is relevant to our legal system in anyway.
QuoteThe 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
SInce it talks only about unreasonable searches, clearly some searches are reasonable.
It has been held for a long, long time that upon arrest police are entitled to go through someone's pockets. As Seedy says if you have a little black book police can go through it - so why not a cellphone?
If you don't understand the difference between the amount of data available in a book carried on your person and someones smartphone, then...well, no, forget that. It is not possible for any human being to not understand the difference.
You mean like the difference between your bank account PIN in your cell phone, as opposed to it written on the back of a business card in your wallet?
Let's not fall for the idolatry of technology when it comes to very basic premises of a person's right to privacy at the time of arrest. These are not monumental, paradigm-changig legal differences here.
Besides, there's no obligation for you to carry around your personal data everywhere you go in a cell phone.
Quote from: Barrister on June 25, 2014, 12:19:00 PM
SInce it talks only about unreasonable searches, clearly some searches are reasonable.
That is some pretty fantastic cherry picking. That is not the only requirement.
QuoteThe 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.
Sure they can search my cell phone provided they describe exactly what it is they are taking and how it is relevant to the crime. That is what the Constitution says. So how does downloading gigabytes of personal information possibly fall under the category of describing the things to be seized? They have no idea so they will just take everything. If you can download everything in my cell phone you might as well just come in my house and take everything you can find just in case something may be found. And bear in mind I need to have committed no crime here, this has been done for simple traffic stops. What on your cell phone is relevant to a traffic stop? I see nothing reasonable about that. That is called fishing and has already been struck down by Supreme Court decisions FOR CENTURIES.
QuoteIt has been held for a long, long time that upon arrest police are entitled to go through someone's pockets. As Seedy says if you have a little black book police can go through it - so why not a cellphone?
Because a cell phone does not just contain names and phone numbers. But your question shows just why this nonsense needs to stop. The logical conclusion is there is no limit to searching and seizing personal information.
Quote from: Barrister on June 25, 2014, 12:19:00 PM
It has been held for a long, long time that upon arrest police are entitled to go through someone's pockets. As Seedy says if you have a little black book police can go through it - so why not a cellphone?
Because a little black book contains signficantly less data about a person's life than a cell phone. For most people of a certain age if one has access to their cell phone one would have access to everything of record in their life.
If police can have access to all that information then the practical result is there is no such thing as an unreasonable search.
edit: obvious point already made by others.
Quote from: CountDeMoney on June 25, 2014, 12:33:39 PM
Besides, there's no obligation for you to carry around your personal data everywhere you go in a cell phone.
Seriously? Don't carry a cell phone or the cops could just take it and download everything at any time? See this is what happens when we try to help out the cops with a little gray area like enabling them to search wallets and crap, they just abuse it all to fuck. Why jump off the slippery slope so completely? Recognize that we have a gray area, a place that is right up against the line, and go no farther. Jesus fucking Christ.
Quote from: Berkut on June 25, 2014, 12:28:28 PM
Quote from: Barrister on June 25, 2014, 12:19:00 PM
Quote from: Valmy on June 25, 2014, 12:15:09 PM
Quote from: Barrister on June 25, 2014, 12:11:12 PM
I stand firmly with Seedy. What a dumb decision.
Yeah how idiotic that the Constitution should impact law enforcement. It is not like it is relevant to our legal system in anyway.
QuoteThe 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
SInce it talks only about unreasonable searches, clearly some searches are reasonable.
It has been held for a long, long time that upon arrest police are entitled to go through someone's pockets. As Seedy says if you have a little black book police can go through it - so why not a cellphone?
If you don't understand the difference between the amount of data available in a book carried on your person and someones smartphone, then...well, no, forget that. It is not possible for any human being to not understand the difference.
Searches are not justified based on how much (or how little) one can discover. WE don't say "well you can search the car trunk because that's pretty small, but you can't search their house".
Quote from: Valmy on June 25, 2014, 12:38:28 PM
Quote from: CountDeMoney on June 25, 2014, 12:33:39 PM
Besides, there's no obligation for you to carry around your personal data everywhere you go in a cell phone.
Seriously? Don't carry a cell phone or the cops could just take it and download everything at any time? See this is what happens when we try to help out the cops with a little gray area like enabling them to search wallets and crap, they just abuse it all to fuck. Why jump off the slippery slope so completely? Recognize that we have a gray area, a place that is right up against the line, and go no farther. Jesus fucking Christ.
Seedy's other example is better though - if you don't want police flipping through your phone put a password lock on it.
If you can't be bothered to do that then you clearly don't have a very big expectation of privacy on your cellphone.
So all you ZOMG MAH PHONE IS MORE IMPORTANT guys are qualifying search and seizure by quantity then?
Because a cell phone could concievably carry "more" than, say a notebook--even though some notebooks could be filled to the brim and a cellphone could be empty, so let's forget logical premises for a moment--that fundamentally alters the privacy definition of evidence? Riiiight.
Quote from: Valmy on June 25, 2014, 12:38:28 PM
Quote from: CountDeMoney on June 25, 2014, 12:33:39 PM
Besides, there's no obligation for you to carry around your personal data everywhere you go in a cell phone.
Seriously? Don't carry a cell phone or the cops could just take it and download everything at any time? See this is what happens when we try to help out the cops with a little gray area like enabling them to search wallets and crap, they just abuse it all to fuck. Why jump off the slippery slope so completely? Recognize that we have a gray area, a place that is right up against the line, and go no farther. Jesus fucking Christ.
You don't like the concept of contributory negligence creeping into criminal law, move to Quebec :lol:
Quote from: CountDeMoney on June 25, 2014, 12:45:16 PM
So all you ZOMG MAH PHONE IS MORE IMPORTANT guys are qualifying search and seizure by quantity then?
Because a cell phone could concievably carry "more" than, say a notebook--even though some notebooks could be filled to the brim and a cellphone could be empty, so let's forget logical premises for a moment--that fundamentally alters the privacy definition of evidence? Riiiight.
I mean police will often find very details handwritten drug "score sheets" on accuseds, while most times the cell phone only has a listing of a few text messages.
Quote from: CountDeMoney on June 25, 2014, 12:45:16 PM
So all you ZOMG MAH PHONE IS MORE IMPORTANT guys are qualifying search and seizure by quantity then?
Because a cell phone could concievably carry "more" than, say a notebook--even though some notebooks could be filled to the brim and a cellphone could be empty, so let's forget logical premises for a moment--that fundamentally alters the privacy definition of evidence? Riiiight.
The US Supreme Court has never ruled IIRC that a notebook can be seized and examined pursuant to search incident to arrest.
The Fifth Circuit court of Appeals permmited the seizure of an address book in
US v. Carrion, without any real discussion or analysis. The 5th Circuit is a pretty conservative law and order court (esp. back then) and that case represents the outer reach of the search incident to arrest doctrine. The Supreme Court actually cited that case yesterday without approving or disapproving so it is still somewhat of an open question.
The rationale behind search incident to arrest is that the police should have discretion to seize items on the person in the interest of security (because the suspect may have a weapon or dangerous object) or to preserve evidence from destruction. IMO
Carrion went beyond that rationale and was probably wrongly decided to the extent it permitted the address book to come in.
However, I also think the Court was right to make a distinction between a modern smart phone and other common physical objects. The Fourth Amendment's core protection is to secure "papers" from unlawful search, and thus the Court has barred things like search and seizure of a footlocker near the suspect's person. The Court's rationale was not based on the size and weight of the footlocker but on the intent of the owner to keep the information therein private. If the footlocker had been shrunk to the size and weight of a phone, the result shouldn't change. The reality is that many people today don't keep "papers" in paper; they keep them in the form of digital files contained in compact devices. So either we turn the Fourth Amendment into an antiquarian curiousity or we interpret in light of technological realities.
In any case, as a former peace officer, you know this was a screw up. The police could have easily seized the phone temporarily to prevent spolitation, then run to get the warrant, then get the same result.
Quote from: Barrister on June 25, 2014, 12:39:55 PM
Quote from: Berkut on June 25, 2014, 12:28:28 PM
Quote from: Barrister on June 25, 2014, 12:19:00 PM
Quote from: Valmy on June 25, 2014, 12:15:09 PM
Quote from: Barrister on June 25, 2014, 12:11:12 PM
I stand firmly with Seedy. What a dumb decision.
Yeah how idiotic that the Constitution should impact law enforcement. It is not like it is relevant to our legal system in anyway.
QuoteThe 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
SInce it talks only about unreasonable searches, clearly some searches are reasonable.
It has been held for a long, long time that upon arrest police are entitled to go through someone's pockets. As Seedy says if you have a little black book police can go through it - so why not a cellphone?
If you don't understand the difference between the amount of data available in a book carried on your person and someones smartphone, then...well, no, forget that. It is not possible for any human being to not understand the difference.
Searches are not justified based on how much (or how little) one can discover. WE don't say "well you can search the car trunk because that's pretty small, but you can't search their house".
I take some comfort in the fact that the Supreme Court of Canada agrees with me and Berkut and everyone else that sees this as an obvious point. :P
From the headnote in R v. Vu
QuoteThe second issue is whether the warrant authorized the search of the computers and cellular telephone. Section 8 of the Charter — which gives everyone the right to be free of unreasonable searches and seizures — seeks to strike an appropriate balance between the right to be free of state interference and the legitimate needs of law enforcement. This balance is generally achieved in two main ways. First, the police must obtain judicial authorization for a search before they conduct it, usually in the form of a search warrant. Second, an authorized search must be conducted in a reasonable manner, ensuring that the search is no more intrusive than is reasonably necessary to achieve its objectives. The privacy interests implicated by computer searches are markedly different from those at stake in searches of receptacles such as cupboards and filing cabinets. It is difficult to imagine a more intrusive invasion of privacy than the search of a personal or home computer. Computers potentially give police access to an almost unlimited universe of information that users cannot control, that they may not even be aware of, may have tried to erase and which may not be, in any meaningful sense, located in the place of search. The numerous and striking differences between computers and traditional receptacles call for distinctive treatment under s. 8 of the Charter . The animating assumption of the traditional rule — that if the search of a place is justified, so is the search of receptacles found within it — simply cannot apply with respect to computer searches.
As fas as this particular case, lazy cops is: lazy.
That will never change, regardless of technological advances.
Quote from: crazy canuck on June 25, 2014, 01:26:32 PM
Quote from: Barrister on June 25, 2014, 12:39:55 PM
Quote from: Berkut on June 25, 2014, 12:28:28 PM
Quote from: Barrister on June 25, 2014, 12:19:00 PM
Quote from: Valmy on June 25, 2014, 12:15:09 PM
Quote from: Barrister on June 25, 2014, 12:11:12 PM
I stand firmly with Seedy. What a dumb decision.
Yeah how idiotic that the Constitution should impact law enforcement. It is not like it is relevant to our legal system in anyway.
QuoteThe 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
SInce it talks only about unreasonable searches, clearly some searches are reasonable.
It has been held for a long, long time that upon arrest police are entitled to go through someone's pockets. As Seedy says if you have a little black book police can go through it - so why not a cellphone?
If you don't understand the difference between the amount of data available in a book carried on your person and someones smartphone, then...well, no, forget that. It is not possible for any human being to not understand the difference.
Searches are not justified based on how much (or how little) one can discover. WE don't say "well you can search the car trunk because that's pretty small, but you can't search their house".
I take some comfort in the fact that the Supreme Court of Canada agrees with me and Berkut and everyone else that sees this as an obvious point. :P
From the headnote in R v. Vu
QuoteThe second issue is whether the warrant authorized the search of the computers and cellular telephone. Section 8 of the Charter — which gives everyone the right to be free of unreasonable searches and seizures — seeks to strike an appropriate balance between the right to be free of state interference and the legitimate needs of law enforcement. This balance is generally achieved in two main ways. First, the police must obtain judicial authorization for a search before they conduct it, usually in the form of a search warrant. Second, an authorized search must be conducted in a reasonable manner, ensuring that the search is no more intrusive than is reasonably necessary to achieve its objectives. The privacy interests implicated by computer searches are markedly different from those at stake in searches of receptacles such as cupboards and filing cabinets. It is difficult to imagine a more intrusive invasion of privacy than the search of a personal or home computer. Computers potentially give police access to an almost unlimited universe of information that users cannot control, that they may not even be aware of, may have tried to erase and which may not be, in any meaningful sense, located in the place of search. The numerous and striking differences between computers and traditional receptacles call for distinctive treatment under s. 8 of the Charter . The animating assumption of the traditional rule — that if the search of a place is justified, so is the search of receptacles found within it — simply cannot apply with respect to computer searches.
I'm unable to find R v Wu from the SCC on point. Since I doubt you just made it up do you have a link?
In any event though, home computers, being big buily things typically located in ones home, are quite unlike a cellphone.
There is no definitive SCC case on cellphones, but here's the leading Alberta authority (which relies heavily on BCSC authorities):
http://www.canlii.org/en/ab/abqb/doc/2012/2012abqb282/2012abqb282.html
Here you go. From the SCC website
http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13327/index.do?r=AAAAAQACdnUAAAAAAQ
edit: It appears that Alberta authority has been overtaken.
Quote from: crazy canuck on June 25, 2014, 01:44:30 PM
Here you go. From the SCC website
http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13327/index.do?r=AAAAAQACdnUAAAAAAQ
edit: It appears that Alberta authority has been overtaken.
Disagree - very different circumstances at work. In Vu police are already executing a search of the person's home - case says the warrant must be specific to also search the computers found there. I have no particular problem with that submission.
Cases like Franko deal with search of a cell phone incidental to the arrest of a suspect. Frankly all the cases say that looking at the phone is permissible - some state that the search must be "cursory", while others allow it to be more expansive.
Quote from: Barrister on June 25, 2014, 01:41:53 PM
In any event though, home computers, being big buily things typically located in ones home, are quite unlike a cellphone.
A smart phone is a computer, tout court.
And many "home" computers are neither bulky, nor necessarily kept at home; the fastest growing segments of the market are thin notebooks, tablets and various hybrids.
The distinction is already close to meaningless; in 5 years it definitively will be.
Quote from: Barrister on June 25, 2014, 01:48:27 PM
In Vu police are already executing a search of the person's home - case says the warrant must be specific to also search the computers found there. I have no particular problem with that submission.
BB, if you read the case more carefully the Court describes smart phones as being computers. In fact a reference to cell phones is in the headnote I quoted earlier.
How do you make any meaningful distiction between a handheld device which contains all your personal information and a desktop device that does the same thing - other than the fact that diminishing numbers of people actually use desktops these days.
edit: Minsky already made the point.
Quote from: crazy canuck on June 25, 2014, 02:17:30 PM
Quote from: Barrister on June 25, 2014, 01:48:27 PM
In Vu police are already executing a search of the person's home - case says the warrant must be specific to also search the computers found there. I have no particular problem with that submission.
BB, if you read the case more carefully the Court describes smart phones as being computers. In fact a reference to cell phones is in the headnote I quoted earlier.
How do you make any meaningful distiction between a handheld device which contains all your personal information and a desktop device that does the same thing - other than the fact that diminishing numbers of people actually use desktops these days.
Your case is still not about search of a cell phone incidental to arrest.
Quote from: Barrister on June 25, 2014, 02:18:32 PM
Quote from: crazy canuck on June 25, 2014, 02:17:30 PM
Quote from: Barrister on June 25, 2014, 01:48:27 PM
In Vu police are already executing a search of the person's home - case says the warrant must be specific to also search the computers found there. I have no particular problem with that submission.
BB, if you read the case more carefully the Court describes smart phones as being computers. In fact a reference to cell phones is in the headnote I quoted earlier.
How do you make any meaningful distiction between a handheld device which contains all your personal information and a desktop device that does the same thing - other than the fact that diminishing numbers of people actually use desktops these days.
Your case is still not about search of a cell phone incidental to arrest.
Ok, go with that logic. You will lose.
Quote from: CountDeMoney on June 25, 2014, 12:33:39 PM
You mean like the difference between your bank account PIN in your cell phone, as opposed to it written on the back of a business card in your wallet?
Let's not fall for the idolatry of technology when it comes to very basic premises of a person's right to privacy at the time of arrest. These are not monumental, paradigm-changig legal differences here.
Besides, there's no obligation for you to carry around your personal data everywhere you go in a cell phone.
What does there not being an obligation for me to carry around my personal data have to do with my right to not have the police search my personal data without a good reason?
My rights are not defined or limited by what I am or am not "obligated" to carry around.
The police could get my PIN from my black book, if I wrote it down there, but they couldn't actually access my account - they certainly could if they downloaded data from my smartphone.
And you are completely wrong - these are in fact, monumental changes here. The difference between the police being able to see what three pictures I can carry around in my wallet and everysingle picture I may have ever taken is most certainly a monumental difference. The amount of data a person can reasonably expect to carry on their person without a smart phone is some minuscule fraction of what data is available if the state is allowed to grab anything they can reach from my smartphone, which is essentially every piece of data about my entire life, and that will only continue to grow.
Quote from: Valmy on June 25, 2014, 12:38:28 PM
Quote from: CountDeMoney on June 25, 2014, 12:33:39 PM
Besides, there's no obligation for you to carry around your personal data everywhere you go in a cell phone.
Seriously? Don't carry a cell phone or the cops could just take it and download everything at any time? See this is what happens when we try to help out the cops with a little gray area like enabling them to search wallets and crap, they just abuse it all to fuck. Why jump off the slippery slope so completely? Recognize that we have a gray area, a place that is right up against the line, and go no farther. Jesus fucking Christ.
Bingo.
This is all started with the argument that cops need to be able to search people because it is "reasonable" for them to do so in order to protect themselves from the possibility of someone carrying a weapon.
And now we are arguing about whether cops can just download every detail of your life. Because you know, they need to make sure you are not carrying a weapon.
This is, again, where I point out how some people have no actual practical care at all for the concept of "liberty" when it comes to any actual application of the idea in real life. It is just pure lip service.
Not just to protect themselves; also so they can seize any evidence of the crime.
Have not seen the details, but the Aereo ruling was disappointing.
Quote from: Admiral Yi on June 25, 2014, 03:13:12 PM
Not just to protect themselves; also so they can seize any evidence of the crime.
Isn't that what a warrant is for?
Quote from: Admiral Yi on June 25, 2014, 03:13:12 PM
Not just to protect themselves; also so they can seize any evidence of the crime.
Bingo.
The Alberta Queen's Bench case I linked to goes on about that point. The police were not, upon arrest, entitled to search through your cell phone just because. There had to be a connection between the offence arrested for, and the reason to search the cell phone. In Franko, the arrest was for drugs, and given the common use of cell phones in the drug trade police were entitled to search through text messages looking for evidence of drug transactions.
I was just reading another case that cited Franko - R v Lanning. In that case the Accused was arrested for possessing a stolen truck. The officer seizes a cell phone from the Accused. The officer looks through the photos stored on the phone hoping to find pictures linking the accused to the stolen truck (such evidence can be very useful). Instead of course he find a number of pictures of underage naked women. They then go and get a warrant for the phone.
Judge finds that since the search was linked to the arrest everything was fine.
America, fuck yeah!
Canada, not so much...
Quote from: The Brain on June 25, 2014, 03:26:23 PM
America, fuck yeah!
Canada, not so much...
It may take the SCC making it even more clear that when they said smartphones are computers they really meant it.
Quote from: frunk on June 25, 2014, 03:21:19 PM
Quote from: Admiral Yi on June 25, 2014, 03:13:12 PM
Not just to protect themselves; also so they can seize any evidence of the crime.
Isn't that what a warrant is for?
You do not require a warrant for every search. Search incidental to arrest is one of the major situations.
Obtaining a warrant is not easy to do either. It typically takes several hours of drafting (during which of course the officer is taken away from other duties).
Quote from: crazy canuck on June 25, 2014, 03:30:09 PM
Quote from: The Brain on June 25, 2014, 03:26:23 PM
America, fuck yeah!
Canada, not so much...
It may take the SCC making it even more clear that when they said smartphones are computers they really meant it.
Your confidence about an area of law you don't practice in is amusing. :D
Now I don't know which way the SCC would ultimately rule. There is a divergence in the Canadian caselaw. But all that means is I am smart enough to not offer guarantees about what future court rulings would be.
Smarter than a phone?
Quote from: Admiral Yi on June 25, 2014, 03:13:12 PM
Not just to protect themselves; also so they can seize any evidence of the crime.
Don't know about the Canuckistani law here, but in the US under Chimel that statement is too broad. The artionale is that evidence can be seized to prevent its destruction or spoliation. Whether the contents of objects seized can be used and admitted into evidence is another question.
Quote from: Barrister on June 25, 2014, 03:39:54 PM
Quote from: crazy canuck on June 25, 2014, 03:30:09 PM
Quote from: The Brain on June 25, 2014, 03:26:23 PM
America, fuck yeah!
Canada, not so much...
It may take the SCC making it even more clear that when they said smartphones are computers they really meant it.
Your confidence about an area of law you don't practice in is amusing. :D
Now I don't know which way the SCC would ultimately rule. There is a divergence in the Canadian caselaw. But all that means is I am smart enough to not offer guarantees about what future court rulings would be.
And I am smart enough to know that trying to convince a court that they shouldnt follow a SCC ruling by arguing the comments were obiter is often a fools errand unless you can convince the court that the SCC wont rule exactly the same way when this decision goes up on appeal. Since a majority of judges who decided Vu are still there (and will be for some time) I am not sure why you think they would change their mind on such a fundamental issue. The Court could not have been more clear that a warrant is required when searching a computer (including a smartphone).
Quote from: crazy canuck on June 25, 2014, 04:01:32 PM
The Court could not have been more clear that a warrant is required when searching a computer (including a smartphone).
Except they didn't say that. :huh:
What they said was:
QuoteThe traditional legal framework holds that once police obtain a warrant to search a place for certain things, they do not require specific, prior authorization to search in receptacles such as cupboards and filing cabinets. The question in this case is whether this framework is appropriate for computer searches. Computers differ in important ways from the receptacles governed by the traditional framework and computer searches give rise to particular privacy concerns that are not sufficiently addressed by that approach.
Quote from: derspiess on June 25, 2014, 03:15:31 PM
Have not seen the details, but the Aereo ruling was disappointing.
Interesting read.
Basically it reflects a different approach in judicial philosophy, with the majority taking a pragmatic "what did Congress mean" approach and the dissent reading the statute more literally and formalistically. Not suprisingly the majority is written by Breyer and the dissent by Scalia, who are most associated with those approaches. What is more interesting is where Roberts falls . . .
Quote from: Barrister on June 25, 2014, 04:06:56 PM
Quote from: crazy canuck on June 25, 2014, 04:01:32 PM
The Court could not have been more clear that a warrant is required when searching a computer (including a smartphone).
Except they didn't say that. :huh:
Well you will learn something today. I told you to read the case - not just the headnote.
The case illuminates a number of things you got wrong in this thread. You will recall that you told Berkut that the amount of information available is not a factor. It most certainly is according to the SCC. I will also highlight for you where the SCC expressly said that a warrent is required to search a computer. The police may take custody of the computer to maintain what evidence there might be but they cannot look at the contents without warrant. So a process similar to what JR suggested.
Quote[40] It is difficult to imagine a more intrusive invasion of privacy than the search of a personal or home computer: Morelli, at para. 105; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 3. Computers are "a multi-faceted instrumentality without precedent in our society": A. D. Gold, "Applying Section 8 in the Digital World: Seizures and Searches", prepared for the 7th Annual Six-Minute Criminal Defence Lawyer (June 9, 2007), at para. 3 (emphasis added). Consider some of the distinctions between computers and other receptacles.
[41] First, computers store immense amounts of information, some of which, in the case of personal computers, will touch the "biographical core of personal information" referred to by this Court in R. v. Plant, [1993] 3 S.C.R. 281, at p. 293. The scale and variety of this material makes comparison with traditional storage receptacles unrealistic. We are told that, as of April 2009, the highest capacity commercial hard drives were capable of storing two terabytes of data. A single terabyte can hold roughly 1,000,000 books of 500 pages each, 1,000 hours of video, or 250,000 four-minute songs. Even an 80-gigabyte desktop drive can store the equivalent of 40 million pages of text: L. R. Robinton, "Courting Chaos: Conflicting Guidance from Courts Highlights the Need for Clearer Rules to Govern the Search and Seizure of Digital Evidence" (2010), 12 Yale J.L. & Tech. 311, at pp. 321-22. In light of this massive storage capacity, the Ontario Court of Appeal was surely right to find that there is a significant distinction between the search of a computer and the search of a briefcase found in the same location. As the court put it, a computer "can be a repository for an almost unlimited universe of information": R. v. Mohamad (2004), 69 O.R. (3d) 481, at para. 43.
[42] Second, as the appellant and the intervener the Criminal Lawyers' Association (Ontario) point out, computers contain information that is automatically generated, often unbeknownst to the user. A computer is, as A. D. Gold put it, a "fastidious record keeper" (para. 6). Word-processing programs will often automatically generate temporary files that permit analysts to reconstruct the development of a file and access information about who created and worked on it. Similarly, most browsers used to surf the Internet are programmed to automatically retain information about the websites the user has visited in recent weeks and the search terms that were employed to access those websites. Ordinarily, this information can help a user retrace his or her cybernetic steps. In the context of a criminal investigation, however, it can also enable investigators to access intimate details about a user's interests, habits, and identity, drawing on a record that the user created unwittingly: O. S. Kerr, "Searches and Seizures in a Digital World" (2005), 119 Harv. L. Rev. 531, at pp. 542-43. This kind of information has no analogue in the physical world in which other types of receptacles are found.
[43] Third, and related to this second point, a computer retains files and data even after users think that they have destroyed them. Oft-cited American scholar O. S. Kerr explains:
. . . marking a file as "deleted" normally does not actually delete the file; operating systems do not "zero out" the zeros and ones associated with that file when it is marked for deletion. Rather, most operating systems merely go to the Master File Table and mark that particular file's clusters available for future use by other files. If the operating system does not reuse that cluster for another file by the time the computer is analyzed, the file marked for deletion will remain undisturbed. Even if another file is assigned to that cluster, a tremendous amount of data often can be recovered from the hard drive's "slack space," space within a cluster left temporarily unused. It can be accessed by an analyst just like any other file. [p. 542]
Computers thus compromise the ability of users to control the information that is available about them in two ways: they create information without the users' knowledge and they retain information that users have tried to erase. These features make computers fundamentally different from the receptacles that search and seizure law has had to respond to in the past.
[44] Fourth, limiting the location of a search to "a building, receptacle or place" (s. 487(1) of the Code) is not a meaningful limitation with respect to computer searches. As I have discussed earlier, search warrants authorize the search for and seizure of things in "a building, receptacle or place" and "permit the search of receptacles such as filing cabinets, within that place . . . . The physical presence of the receptacle upon the premises permits the search": Fontana and Keeshan, at p. 1181 (italics in original; underlining added). Ordinarily, then, police will not have access to items that are not physically present in the building, receptacle or place for which a search has been authorized. While documents accessible in a filing cabinet are always at the same location as the filing cabinet, the same is not true of information that can be accessed through a computer. The intervener the Canadian Civil Liberties Association notes that, when connected to the Internet, computers serve as portals to an almost infinite amount of information that is shared between different users and is stored almost anywhere in the world. Similarly, a computer that is connected to a network will allow police to access information on other devices. Thus, a search of a computer connected to the Internet or a network gives access to information and documents that are not in any meaningful sense at the location for which the search is authorized.
[45] These numerous and striking differences between computers and traditional "receptacles" call for distinctive treatment under s. 8 of the Charter . The animating assumption of the traditional rule — that if the search of a place is justified, so is the search of receptacles found within it — simply cannot apply with respect to computer searches.
(ii) Prior Authorization Is Required
[46] Prior authorization of searches is a cornerstone of our search and seizure law. As the Court affirmed in Hunter, the purpose of s. 8 is "to protect individuals from unjustified state intrusions upon their privacy. That purpose requires a means of preventing unjustified searches before they happen . . . . This, in my view, can only be accomplished by a system of prior authorization" (p. 160 (emphasis in original)). Dickson J. went on in Hunter to say that the requirement of prior authorization "puts the onus on the state to demonstrate the superiority of its interest to that of the individual" (ibid.). The purpose of the prior authorization process is thus to balance the privacy interest of the individual against the interest of the state in investigating criminal activity before the state intrusion occurs.
[47] I have found that privacy interests in computers are different — markedly so — from privacy interests in other receptacles that are typically found in a place for which a search may be authorized. For this reason, I do not accept that a justice who has considered the privacy interests arising from the search of a place should be assumed to have properly considered the particular interests that could be compromised by a computer search. The distinctive privacy concerns that are at stake when a computer is searched must be considered in light of the purposes of s. 8 of the Charter . This calls for a specific assessment of "whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement": Hunter, at pp. 159-60. That is the threshold demanded by s. 8 of the Charter . Only a specific authorization to search a computer found in the place of search ensures that the authorizing justice has considered the full range of the distinctive privacy concerns raised by computer searches and, having done so, has decided that this threshold has been reached in the circumstances of a particular proposed search.
[48] Specific, prior authorization means, in practical terms, that if police intend to search any computers found within a place they want to search, they must first satisfy the authorizing justice that they have reasonable grounds to believe that any computers they discover will contain the things they are looking for. They need not, however, establish that they have reasonable grounds to believe that computers will be found in the place, although they clearly should disclose this if it is the case. I would add here that once a warrant to search computers is obtained, police have the benefit of s. 487(2.1) and (2.2) of the Code, which allows them to search, reproduce, and print data that they find.
[49] If police come across a computer in the course of a search and their warrant does not provide specific authorization to search computers, they may seize the computer (assuming it may reasonably be thought to contain the sort of things that the warrant authorizes to be seized), and do what is necessary to ensure the integrity of the data. If they wish to search the data, however, they must obtain a separate warrant.
Quote from: Berkut on June 25, 2014, 02:52:58 PM
Quote from: CountDeMoney on June 25, 2014, 12:33:39 PM
You mean like the difference between your bank account PIN in your cell phone, as opposed to it written on the back of a business card in your wallet?
Let's not fall for the idolatry of technology when it comes to very basic premises of a person's right to privacy at the time of arrest. These are not monumental, paradigm-changig legal differences here.
Besides, there's no obligation for you to carry around your personal data everywhere you go in a cell phone.
What does there not being an obligation for me to carry around my personal data have to do with my right to not have the police search my personal data without a good reason?
My rights are not defined or limited by what I am or am not "obligated" to carry around.
The police could get my PIN from my black book, if I wrote it down there, but they couldn't actually access my account - they certainly could if they downloaded data from my smartphone.
And you are completely wrong - these are in fact, monumental changes here. The difference between the police being able to see what three pictures I can carry around in my wallet and everysingle picture I may have ever taken is most certainly a monumental difference. The amount of data a person can reasonably expect to carry on their person without a smart phone is some minuscule fraction of what data is available if the state is allowed to grab anything they can reach from my smartphone, which is essentially every piece of data about my entire life, and that will only continue to grow.
I tend to agree with Berkut on this. Before I had a cell phone, I didn't carry my address book around with me--it stayed at home, where my phone was. There were a relatively few people that I might have called had I needed to make an emergency call from a phone booth, but I didn't need to have those numbers written down on a paper somewhere on my person, because they were numbers I knew without having to look up.
Now that I have a cell phone, of course I have all of my contact info stored in it, and I carry it around with me most anywhere. If I wasn't going to do that, why would I even bother having a cell phone--I'd just stick with a land line at home.
This is likely to have broader repercussions :w00t:
http://www.washingtonpost.com/business/technology/supreme-court-cellphone-ruling-hints-at-broader-curbs-on-surveillance/2014/06/25/2732b532-fc9b-11e3-8176-f2c941cf35f1_story.html
QuoteSupreme Court cellphone ruling hints at broader curbs on surveillance
In a strong defense of digital age privacy, a unanimous Supreme Court ruled Wednesday that police may not generally search the cellphones of people they arrest without first getting search warrants. ( / AP)
By Craig Timberg June 25 at 7:56 PM
The words "National Security Agency" appear nowhere in the Supreme Court's opinion Wednesday prohibiting cellphone searches without a warrant. But the unanimous ruling makes clear that the nation's most important jurists are tuned in to the roiling debate about high-tech surveillance and concerned about government officials going too far.
In broad, passionate language — spiked with the occasional joke — the ruling by Chief Justice John G. Roberts Jr. asserts that the vast troves of information police can find in modern cellphones are no less worthy of constitutional protection than the private papers that Founding Fathers once kept locked in wooden file cabinets inside their homes.
Roberts even chides the government for arguing that searching a cellphone is "materially indistinguishable" from searches of other items that can be seized at the scene of an arrest, such as a pack of cigarettes or a handwritten note. "That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together," he wrote.
Such declarations, experts said, suggest a willingness to reconsider legal rulings long used to justify modern surveillance tools. That includes some spying technologies that were unimaginable when courts first articulated those arguments but that now are routinely used by a range of government agencies, including the NSA, the FBI and many state and local police forces.
A footnote in Wednesday's ruling cautions against assuming too much about the court's views on data collection "under other circumstances." But legal experts on both sides of the privacy debate took notice of the unanimity of the ruling and the uncommonly strong language Roberts used when describing the privacy risks in modern technologies.
"It's just a big, forceful, bold decision," said Orin S. Kerr, a George Washington University law professor and former Justice Department lawyer specializing in technology issues. "If you're at the [American Civil Liberties Union], you're popping a champagne bottle. If you're at the FBI, you're scratching your head and thinking of what you're going to do next."
Many observers date the Supreme Court's reconsideration of high-tech surveillance to the United States v. Jones decision in 2012, which ruled that police had trespassed when placing an electronic tracking device on a suspect's car. In applying a traditional constitutional protection to new technology, the court expressed concerns about the need to update the Fourth Amendment for the modern world.
The ruling on cellphone searches, experts said, suggested that the court's consensus has grown on such issues over the past two years, a period in which the revelations made by former NSA contractor Edward Snowden have sparked international controversy over the privacy implications of high-tech government spying.
The Supreme Court ruling, said former NSA general counsel Stewart A. Baker, "shows that the judges have the same technology panic that the rest of us do."
Baker, now a partner at a private law firm, added, "That means that in other areas they also will be alive to that risk and open to arguments that the rules should be changed."
Privacy advocates are likely to cite the ruling in seeking to limit the ability of the government to conduct searches in border areas, where constitutional standards typically are lower. Even the "third-party doctrine," which says that users have no reasonable expectation of privacy when they share information with a company or other third party, could be put in peril.
In Wednesday's ruling, Roberts notes that cellphones aren't exclusively — or even mainly — devices for talking, given their ability to also shoot video, browse the Web, send and receive e-mail, store gigabytes of information and access even more of it through remote "cloud" services. He even makes a quip about how frequently people gaze at or touch the devices, saying that they are "such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy."
The legal consequences of the ruling stand to go far beyond cellphones and into the increasingly broad array of devices that carry or can access personal information through digital means — computers, cars, e-readers, wearable devices such as Google Glass and even some newer appliances that track usage and can be accessed remotely over the Internet.
More than anything, legal experts said, the ruling offers a reminder that Supreme Court justices live in the real world and almost certainly use cellphones in ways that make them aware of their privacy risks.
"These are highly intelligent individuals who are engaged in the world around them," said Brian Owsley, a former magistrate judge from Texas who repeatedly wrestled with technology and privacy issues during his years on the bench. "Any time you get nine people on the Supreme Court saying something in one direction, that's pretty impressive. . . . They're all clearly taking a stand for the Fourth Amendment in light of privacy concerns."
Quote from: Valmy on June 25, 2014, 12:15:09 PM
Quote from: Barrister on June 25, 2014, 12:11:12 PM
I stand firmly with Seedy. What a dumb decision.
Yeah how idiotic that the Constitution should impact law enforcement. It is not like it is relevant to our legal system in anyway.
The 4th Amendment sucks.
Quote from: BerkThis is, again, where I point out how some people have no actual practical care at all for the concept of "liberty" when it comes to any actual application of the idea in real life. It is just pure lip service.
Had the same argument with a pal at work today. He quoted Ben Franklin and I said I didn't agree with the premise. Just because something is pithy doesn't make it true.
Explain to me how anyone is harmed by searching a smartphone (or, for that matter, a wiretap or video surveillance). (I'm kidding, you can't explain it to my satisfaction and I won't convince you either. But I do trust you have sounder reasons than "the cop will use my debit card.")
We know you're a totalitarian monster, and one of the rare few who admits it and is proud of it. You don't have to remind us every day.
Quote from: jimmy olsen on June 25, 2014, 11:59:09 PM
We know you're a totalitarian monster, and one of the rare few who admits it and is proud of it. You don't have to remind us every day.
I am not. I didn't say they could gun you down in the street without a trial.
There is nothing intrinsically totalitarian about a surveillance state. Totalitarian states had surveillance organs, but they also had water treatment plants and roads.
The signatures of a totalitarian state are the lack of democratic accountability and the lack of freedom of expression and freedom of movement, not any putative right to privacy that permits an enormous amount of discreet criminal activity. As long as accountability and the core freedoms are observed--and there is no reason to think wiretaps or searches during otherwise-reasonable detentions would magically infringe upon them--all you have is a much safer country with much, much, much happier people.
Quote from: Ideologue on June 25, 2014, 11:57:40 PM
Quote from: BerkThis is, again, where I point out how some people have no actual practical care at all for the concept of "liberty" when it comes to any actual application of the idea in real life. It is just pure lip service.
Had the same argument with a pal at work today. He quoted Ben Franklin and I said I didn't agree with the premise. Just because something is pithy doesn't make it true.
Explain to me how anyone is harmed by searching a smartphone (or, for that matter, a wiretap or video surveillance). (I'm kidding, you can't explain it to my satisfaction and I won't convince you either. But I do trust you have sounder reasons than "the cop will use my debit card.")
If you were the only person that was making this type of an argument I would just ignore this, but you are not.
It's crazy that we are now at place that we have to explain how our basic rights aren't being violated. Those rights are ours no matter what we do or say, it is on the government/police/lawyers/etc to prove otherwise.
Oh, to be clear, I never said it wasn't a proper reading of the Constitution.
But, for what it's worth, consider that a surveillance state would not just prevent crime--it would also prevent innocent persons from being imprisoned by an imperfect justice system, a price that should never have to paid by anyone, even for peaceful law and order. Consider that.
Quote from: Ideologue on June 25, 2014, 11:57:40 PM
Quote from: BerkThis is, again, where I point out how some people have no actual practical care at all for the concept of "liberty" when it comes to any actual application of the idea in real life. It is just pure lip service.
Had the same argument with a pal at work today. He quoted Ben Franklin and I said I didn't agree with the premise. Just because something is pithy doesn't make it true.
Explain to me how anyone is harmed by searching a smartphone (or, for that matter, a wiretap or video surveillance). (I'm kidding, you can't explain it to my satisfaction and I won't convince you either. But I do trust you have sounder reasons than "the cop will use my debit card.")
It's true, your odds of convincing me that the 4th Amendment is of no value are quite slim.
Quote from: Ideologue on June 26, 2014, 12:30:55 AM
Oh, to be clear, I never said it wasn't a proper reading of the Constitution.
But, for what it's worth, consider that a surveillance state would not just prevent crime--it would also prevent innocent persons from being imprisoned by an imperfect justice system, a price that should never have to paid by anyone, even for peaceful law and order. Consider that.
That is a good point - lord knows the historical record of police states is really outstanding when it comes to making sure the innocent are never imprisoned.
Quote from: crazy canuck on June 25, 2014, 02:17:30 PM
Quote from: Barrister on June 25, 2014, 01:48:27 PM
In Vu police are already executing a search of the person's home - case says the warrant must be specific to also search the computers found there. I have no particular problem with that submission.
BB, if you read the case more carefully the Court describes smart phones as being computers.
Especially if your smartphone syncs with your home computer, e.g. because you're using your Google account on all of them. Now you could say that you shouldn't link your data then, or that you shouldn't carry your smartphone around. But that's not life reality, and though my memory of the law lectures is hazy, I seem to recall that among many other things laws should reflect life reality and adapt to it (within reason, of course).
It comes back to an article from a few weeks ago about having to determine what is reasonably expected privacy in the digital age. Is something not private, just because it's relatively easily accessible? Sure, everything I put out in the open (facebook, posting here etc.) - obviously not private, or not less private, at least, than having a conversation in the street or in a bar. Email accounts that require a password to access, even though you can intercept emails between sender and recipient? The GPS data from your phone?
IMHO it's all murky and won't be solved in one or two debates. This will be a process that will go on for years and determine how we will conduct ourselves digitally in ten or twenty years, with a change in legislation as well as mindsets.
That said, I'm glad to live in a place where I don't have to worry about a policeman searching my phone or a SWAT team tossing flashbangs into my bed because they messed up the address. :P
Ide wants America to be like Canada where you get sent to Machiavellian pound-you-in-the-ass gaol if you carry your phone around.
Quote from: The Brain on June 26, 2014, 07:12:26 AM
Ide wants America to be like Canada where you get sent to Machiavellian pound-you-in-the-ass gaol if you carry your phone around.
I don;t think Ide has ever met a cop, prosecutor, or government bureaucrat. If he had, he would realize that his utopian ideal of giving those folks complete access to his every move and idea in order to prevent anyone from being falsely accused of a crime is going to result in more crime, not less. The nature of the criminal activity will shift from criminals being freelancers with imperfect information to being government employees with perfect information.
I, again, call on Ide to put his money where his mouth is. If complete lack of privacy is such a great idea, then let him broadcast his own activities on the internet 24/7. Then, no one will be able to falsely accuse him of crimes.
Quote from: Ideologue on June 25, 2014, 11:57:40 PM
Explain to me how anyone is harmed by searching a smartphone
They dont teach things like that in the law school you attended?
Quote from: Ideologue on June 26, 2014, 12:30:55 AM
But, for what it's worth, consider that a surveillance state would not just prevent crime--it would also prevent innocent persons from being imprisoned by an imperfect justice system, a price that should never have to paid by anyone, even for peaceful law and order. Consider that.
Wow. I did not figure you to be so staggeringly naive.
Long experience demonstrates that the best way to protect the innocent is to put checks and restrictions on the government. Not to broaden its powers.
Quote from: Ideologue on June 25, 2014, 11:57:40 PM
Quote from: BerkThis is, again, where I point out how some people have no actual practical care at all for the concept of "liberty" when it comes to any actual application of the idea in real life. It is just pure lip service.
Had the same argument with a pal at work today. He quoted Ben Franklin and I said I didn't agree with the premise. Just because something is pithy doesn't make it true.
Explain to me how anyone is harmed by searching a smartphone (or, for that matter, a wiretap or video surveillance). (I'm kidding, you can't explain it to my satisfaction and I won't convince you either. But I do trust you have sounder reasons than "the cop will use my debit card.")
If only you believed in God, you would be the perfect modern day reincarnation of a 17th century Puritan fanatic.
Quote from: The Minsky Moment on June 26, 2014, 09:36:21 AM
Quote from: Ideologue on June 25, 2014, 11:57:40 PM
Quote from: BerkThis is, again, where I point out how some people have no actual practical care at all for the concept of "liberty" when it comes to any actual application of the idea in real life. It is just pure lip service.
Had the same argument with a pal at work today. He quoted Ben Franklin and I said I didn't agree with the premise. Just because something is pithy doesn't make it true.
Explain to me how anyone is harmed by searching a smartphone (or, for that matter, a wiretap or video surveillance). (I'm kidding, you can't explain it to my satisfaction and I won't convince you either. But I do trust you have sounder reasons than "the cop will use my debit card.")
If only you believed in God, you would be the perfect modern day reincarnation of a 17th century Puritan fanatic.
I am not sure he wants to allow everyone to read everyone else's cell phone records because it will help prevent dancing.
Quote from: The Minsky Moment on June 26, 2014, 09:31:58 AM
Quote from: Ideologue on June 26, 2014, 12:30:55 AM
But, for what it's worth, consider that a surveillance state would not just prevent crime--it would also prevent innocent persons from being imprisoned by an imperfect justice system, a price that should never have to paid by anyone, even for peaceful law and order. Consider that.
Wow. I did not figure you to be so staggeringly naive.
Long experience demonstrates that the best way to protect the innocent is to put checks and restrictions on the government. Not to broaden its powers.
I can't find the case at the moment, but our courts have commented on how DNA can help to remove suspicion from the innocent, as well as identify the guilty. It depends on the circumstance, but that can be a valid consideration.
Quote from: Barrister on June 26, 2014, 12:46:53 PM
Quote from: The Minsky Moment on June 26, 2014, 09:31:58 AM
Quote from: Ideologue on June 26, 2014, 12:30:55 AM
But, for what it's worth, consider that a surveillance state would not just prevent crime--it would also prevent innocent persons from being imprisoned by an imperfect justice system, a price that should never have to paid by anyone, even for peaceful law and order. Consider that.
Wow. I did not figure you to be so staggeringly naive.
Long experience demonstrates that the best way to protect the innocent is to put checks and restrictions on the government. Not to broaden its powers.
I can't find the case at the moment, but our courts have commented on how DNA can help to remove suspicion from the innocent, as well as identify the guilty. It depends on the circumstance, but that can be a valid consideration.
I am beginning to worry about you BB. Are you suggesting that a surveillance state is beneficial because DNA evidence may help to remove suspicion in some cases?
Quote from: crazy canuck on June 26, 2014, 01:09:26 PM
Quote from: Barrister on June 26, 2014, 12:46:53 PM
Quote from: The Minsky Moment on June 26, 2014, 09:31:58 AM
Quote from: Ideologue on June 26, 2014, 12:30:55 AM
But, for what it's worth, consider that a surveillance state would not just prevent crime--it would also prevent innocent persons from being imprisoned by an imperfect justice system, a price that should never have to paid by anyone, even for peaceful law and order. Consider that.
Wow. I did not figure you to be so staggeringly naive.
Long experience demonstrates that the best way to protect the innocent is to put checks and restrictions on the government. Not to broaden its powers.
I can't find the case at the moment, but our courts have commented on how DNA can help to remove suspicion from the innocent, as well as identify the guilty. It depends on the circumstance, but that can be a valid consideration.
I am beginning to worry about you BB.
lol
Quote from: The Minsky Moment on June 26, 2014, 09:31:58 AM
Quote from: Ideologue on June 26, 2014, 12:30:55 AM
But, for what it's worth, consider that a surveillance state would not just prevent crime--it would also prevent innocent persons from being imprisoned by an imperfect justice system, a price that should never have to paid by anyone, even for peaceful law and order. Consider that.
Wow. I did not figure you to be so staggeringly naive.
Long experience demonstrates that the best way to protect the innocent is to put checks and restrictions on the government. Not to broaden its powers.
Sure, send in the parade of horribles, with each and every one involving someone exceeding the authority I've supposed for them. a bit too busy protesting that cops carry guns and writing briefs in support of your 2d Amendment right to arm yourself with anti-tank weapons to be used in the event of tyranny? Obviously the watchers themselves must be watched. Obviously there must be checks on the surveillance state, just as there must be checks on almost any executive function you could name--which our form of government does, in fact, provide, given that no one has decided to abrogate the relevant verbiage of the 4th Amendment yet. (Indeed, it has so far provided such a good check on public "tyranny" that tyranny is actually increased, by pushing government as well as private spying into the nether realm of open, but hazy, secrets.)
In any event, I'd be very interested for you to provide a brief history of all the states that started out as liberal democracies, legitimized pervasive surveillance, and then, as a direct result, became a totalitarian dictatorship. Hint: Nazi Germany does not count, because pervasive surveillance was a result of the dictatorship, not the other way around.
You're not arguing from history, you're arguing from an unexamined axiom that is itself the result of confusing correlation and causation--namely the correlation that repressive regimes have found spying on their own citizens useful.
I'll also note that when folks, including you, have advocated for far more forceful government intervention into private matters--like actively silencing users of the 1st Amendment or for more strenuous 2d Amendment violations--I have never accused them of being a Calvinist. Which is a weird insult to make.
CC: I'll certainly concede that the law school you was better at indoctrinating you--or maybe you were just better at being indoctrinated. Not everything you hold dear is, by necessity, correct, and even a foundational law can be inefficient or unwise.
Grumbler: your suggestion is retarded. I will give you the benefit of the doubt and assume it is a silly joke, rather than treating it as serious. (Although if I did, I'd point out that me broadcasting my private activities to the public would do little to reduce crime other than my arguably copyright infringing use of Youtube and xHamster. Also, as a result of the latter, I'd probably get fired.)
Quote from: Ideologue on June 26, 2014, 05:39:16 PM
In any event, I'd be very interested for you to provide a brief history of all the states that started out as liberal democracies, legitimized pervasive surveillance,
There is no such history, in part because pervasive surveillance is incompatible with democratic ideals.
Quote from: Ideologue on June 26, 2014, 05:39:16 PM
In any event, I'd be very interested for you to provide a brief history of all the states that started out as liberal democracies, legitimized pervasive surveillance, and then, as a direct result, became a totalitarian dictatorship. Hint: Nazi Germany does not count, because pervasive surveillance was a result of the dictatorship, not the other way around.
No liberal democracy has ever "legitimized pervasive surveillance", no liberal democracy will do so, and remain a liberal democracy. As for Nazi Germany, its use of secret police and surveillance were both inherent to its ideology while also furthering its control - cause and effect went in both directions, and it is natural that it will do so. The extremely awkward nature of both these propositions just exposes one key vulnerability in your argument you are no doubt aware: the strong empirical correlation between "surveillance states" and tyranny.
QuoteYou're not arguing from history, you're arguing from an unexamined axiom that is itself the result of confusing correlation and causation--namely the correlation that repressive regimes have found spying on their own citizens useful.
And bingo there it is. The only thing unexamined here is why "repressive regimes have found spying on their own citizens useful." It is because surveillance by a governing authority is a powerful mechanism for social control and coercion. Liberal democracies don't need such harsh and blunt tools, they have other means of mobilizing social solidarity and support. Does creating a vast surveillance apparatus entail tyranny as a matter of logical necessity? Perhaps not, but as a matter of practical social reality it does. No free society would willingly submit to the expense and intrusion entailed by such an apparatus. It would only do so under duress or sense of emergency, and then only temporarily. But the power such an apparatus provides a central authority does facilitate those who would extend the "emergency" indefinitely.
QuoteI'll also note that when folks, including you, have advocated for far more forceful government intervention into private matters--like actively silencing users of the 1st Amendment or for more strenuous 2d Amendment violations--I have never accused them of being a Calvinist. Which is a weird insult to make.
No it is really quite on point. The New England Puritan leaders wanted to design a perfect society where everyone was responsible for monitoring everyone else, so that sin could be extirpated. It was a society of MAD by snitching and busybodiness. If they had modern technology no doubt they would have deployed as you would like, so that the Devil could never creep in silently and unseen.
My point is that spying is only a tool that can be used for any type of government, for good or ill--like, for example, tanks--which have also been found useful by dictatorships, but are not inherently tyrannical in themselves.
Unfortunately, if I accepted your definition of liberal democracy as a state that does not spy on its people (without, I suppose you mean, the permission of a court), it would put me at a disadvantage in this discussion.
I see the appopriateness of the Puritan comparison now. It's not bad. They were on the right track, though obviously they lacked the technological apparatus and functioning oversight to employ their ideas effectively. They also had insanely repressive laws--and these are what the actual substance of a tyranny is made of, not some guy reading your email or the surveillance camera feeding into an exabyte-sized set of hard drives in an air conditioned bunker in New Mexico, ready to prove--or disprove!--that you (emphatically the rhetorical you, of course) molested your kid.
Something like that perfect society is within reach. It's cold comfort to both of us, but I suspect I represent the political morality of the future more than you and Berk.
You say no free society would submit to it--but why not? The fear, I take it, is that a shadowy combine will... what? Frame you? Blame you? Shame you? In the prudish, extortion-ready culture of the 1790s--a world of actual papers you kept in your house, rather than electronic documents intercepted over the Internet--this made a lot more sense. They had just faced an enemy that used "unreasonable" searches as a tool to harass people and to violate actual human rights. But I do not believe that mere spying is a violation of any human right in and of itself, if it does not involve any additional physical imposition. Instead, it's a tool that could be used--subject to the appropriate judicial and legislative oversight--to eliminate all crime, and all not only the dangers we actually face from each other, but even the perception of danger from each other.
And that is an actual human right:
(https://languish.org/forums/proxy.php?request=http%3A%2F%2Fimage.arthousereproductions.com%2Fcache%2Fdata%2Fimages%2Ffreedom-from-fear-1943-norman-rockwell-420x575.jpg&hash=26de1d4656fefab0c9ac5c39046d41f24f3bd871)
Maybe total surveillance can work in a liberal society if all its members become a lot less prudish, a lot more tolerant, and way more understanding of the fact that no one is perfect. Otherwise, every citizen that represents a threat of some kind to a government bureaucrat will become vulnerable to an embarrassing revelation.
Quote from: DGuller on June 26, 2014, 07:04:08 PM
Maybe total surveillance can work in a liberal society if all its members become a lot less prudish, a lot more tolerant, and way more understanding of the fact that no one is perfect.
No. There are always things that people will want to keep private and having things that about oneself that are not automatically broadcast to the world is essential to the sense of self and autonomy.
Ideologue's post above with the picture is just mind-boggling, to the point where it's clear he isn't on the level - he is an agent provocateur. Total surveillance IS truly infantalizing, which is why a key point in development of children is when parents back off on monitoring and give their kids space to grow without being constantly watched. It's true we lose that sense of security we had as small children that someone is always there to come to the rescue if needed, but that is the price of being an autonomous adult. And in any case, the government is not a viable substitute for Mummy and Daddy.
Quote from: Ideologue on June 26, 2014, 06:48:46 PM
(https://languish.org/forums/proxy.php?request=http%3A%2F%2Fimage.arthousereproductions.com%2Fcache%2Fdata%2Fimages%2Ffreedom-from-fear-1943-norman-rockwell-420x575.jpg&hash=26de1d4656fefab0c9ac5c39046d41f24f3bd871)
I always thought that was a pretty old looking man to have such young kids. The depression must have been hard on him.
HEY NOW
Quote from: Valmy on June 27, 2014, 09:57:18 AM
I always thought that was a pretty old looking man to have such young kids. The depression must have been hard on him.
People got old fast back then. Remember that iconic pic of that woman during the Depression? She was like 33 or something.
Quote from: Ideologue on June 26, 2014, 05:39:16 PM
In any event, I'd be very interested for you to provide a brief history of all the states that started out as liberal democracies, legitimized pervasive surveillance...
There has been no such abomination.
What is remarkable is Ide can see fascist ideology in Wally-E but he cannot comprehend real fascism.
Quote from: DGuller on June 26, 2014, 07:04:08 PM
Maybe total surveillance can work in a liberal society if all its members become a lot less prudish, a lot more tolerant, and way more understanding of the fact that no one is perfect. Otherwise, every citizen that represents a threat of some kind to a government bureaucrat will become vulnerable to an embarrassing revelation.
And if the government bureaucrats are the only ones holding the information, Ide's model fails anyway - plus, that's the opposite of "liberal democracy." Everyone needs to have access to all the surveillance data, so that they can verify that their neighbors are not getting away with crimes by conniving with the government bureaucrat. As MM points out, this is the Puritan model, only substituting "crime" for "sin."
Again, i invite Ide to be the model for this concept of abandoning all privacy and allowing 24/7 public surveillance of the individual. He doesn't need any government participation, the technology is there right now.
Quote from: derspiess on June 27, 2014, 10:16:21 AM
Quote from: Valmy on June 27, 2014, 09:57:18 AM
I always thought that was a pretty old looking man to have such young kids. The depression must have been hard on him.
People got old fast back then. Remember that iconic pic of that woman during the Depression? She was like 33 or something.
There was a photo series about Afghan refugee kids. Some of them looked older than me.
Quote from: derspiess on June 27, 2014, 10:16:21 AM
Quote from: Valmy on June 27, 2014, 09:57:18 AM
I always thought that was a pretty old looking man to have such young kids. The depression must have been hard on him.
People got old fast back then. Remember that iconic pic of that woman during the Depression? She was like 33 or something.
Are you talking about the woman in the painting American Gothic? She was 31 when she modeled for that.
Quote from: dps on June 27, 2014, 07:27:57 PM
Quote from: derspiess on June 27, 2014, 10:16:21 AM
People got old fast back then. Remember that iconic pic of that woman during the Depression? She was like 33 or something.
Are you talking about the woman in the painting American Gothic? She was 31 when she modeled for that.
That wasn't a portrait, so her apparent age in the painting isn't evidence of anything.
Quote from: dps on June 27, 2014, 07:27:57 PM
Quote from: derspiess on June 27, 2014, 10:16:21 AM
Quote from: Valmy on June 27, 2014, 09:57:18 AM
I always thought that was a pretty old looking man to have such young kids. The depression must have been hard on him.
People got old fast back then. Remember that iconic pic of that woman during the Depression? She was like 33 or something.
Are you talking about the woman in the painting American Gothic? She was 31 when she modeled for that.
I think he means this one
(https://languish.org/forums/proxy.php?request=http%3A%2F%2Fi.imgur.com%2F2uDc8Pk.jpg&hash=1f73276291a31eef47375bb4fc0f649c67004dbf)
Quote from: crazy canuck on June 27, 2014, 10:20:57 AM
Quote from: Ideologue on June 26, 2014, 05:39:16 PM
In any event, I'd be very interested for you to provide a brief history of all the states that started out as liberal democracies, legitimized pervasive surveillance...
There has been no such abomination.
What is remarkable is Ide can see fascist ideology in Wally-E but he cannot comprehend real fascism.
That's not fascism, it's just statism.
Quote from: JoanIdeologue's post above with the picture is just mind-boggling, to the point where it's clear he isn't on the level - he is an agent provocateur.
For what? Is this a fancy word for "troll"? I assure you, I'm not.
QuoteTotal surveillance IS truly infantalizing, which is why a key point in development of children is when parents back off on monitoring and give their kids space to grow without being constantly watched. It's true we lose that sense of security we had as small children that someone is always there to come to the rescue if needed, but that is the price of being an autonomous adult. And in any case, the government is not a viable substitute for Mummy and Daddy.
Nonsense. The first duty of the government is to prevent crime (or maybe it's to fight other governments, but at least it is its
second duty). Going back to that Calvinist epithet, do you think I wish the government to engage in petty moral scolding?
In any event, applying household metaphors to theories of the state is a dangerous game. Aside from the blind alley of crude Freudianism, you also get goofy results like austerity. Such frameworks should be well-examined. I mean, really: your argument, boiled down, is that the threat of violence teaches us to grow up and become independent adults. That cannot be the best you've got. (It's not even true. The most juvenile people I've ever met were victims of violence.)
Domestication and interdependence are the two most clear thrulines in human history. They're tantamount to the point of human civilization. There is not, and has rarely if ever been, such a thing as an autonomous adult, for the simple fact that almost no human who ever lived has been autonomous.
I think these are the two genuine arguments against the proposal that search power be expanded to permit pervasive surveillance (I am open to correction):
1)Government, given surveillance powers of such a mighty kind, will use it to destroy actual liberties. For example, Ninth Amendment privacy rights--a Republican-controlled government will round up everybody who's ever had an abortion, put them all into Room 101, where fetuses chew off their faces.
Counterargument: The Fifth, Sixth, Eighth, and Ninth Amendments still exist in their present form, robust enough to prevent such abuses unless government is already engaged in outright, lawless tyranny. If that is the case, we are doomed, since they have tanks and airplanes.
2)Private individuals will get ahold of the data and extort people with it. For example, someone finds out you like weird sex stuff.
Counterargument: private civilians will not have access to the data--if they come into possession of the data, they will be punished (I prefer execution, but as you torturers prefer imprisonment, let's say they get 10 years in the federal pen); government-employed private actors may have access to the data--if they use it, they will also be punsihed. This is an argument you would use against cops carrying guns, since they could use them for evil ends.
(Also, big fucking deal.)
Speaking a little more concretely, what actual need is there of humans in the data collection process itself? Is there actually a need for data review? Perhaps, to avoid 9/11 type threats. That's much what the NSA is doing now--putatively defending us against people who are willing to die in the commission of their crimes. This is why terrorism is warfighting by any other name, and not ordinary criminal activity.
As for ordinary criminals--the child molester, the bank robber, the dirty accountant?
Computers could store years--decades!--of surveillance data with
nary a human eye laid upon it , outside of a formal charge. The computers could, if we wished and felt they were capable of it, be programmed to generate reports of potentially criminal activity which a reviewer could look at. But this is not entirely necessary. The mere existence of evidence of
everything would have such an enormous deterrent effect on criminal behavior that it would rarely if ever occur. As I've noted before, incorrect verdicts would almost never occur as well; perhaps ironically, defamation by way of false accusations would probably become the number one crime in America.
Unfortunately, your rather flummoxed arguments suggests that your opposition is kneejerk ideological. Consider the least offensive plan as laid out above--stored surveillance data, reviewed by a court and by attorneys, only in the event of a sworn warrant supported by probable cause, and subject to all other protections our Constitution grants us. Then tell me what fundamental, necessary human freedom is annihilated by this.