![shortformblog:
Just decided: The Supreme Court decided in favor of nightclub owner Antoine Jones, convicted of drug conspiracy based partly on GPS evidence, saying that the federal government needs a warrant when using a GPS device to track someone. Here’s the decision. A key line from Antonin Scalia’s main opinion here: “It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”
at least they got the verdict right.
what the fuck does this have to do with a physical intrusion?? scalia is a clown—he has no business being a supreme court justice. see what kind of nonsense you get into with strict constructionism—everything in terms of ancient history—how about some modern common sense.
“We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”
“the government physically occupied private space,” “physical intrusion,” “when it was adopted”? this language does two things wrong, 1st it erroneously equates a bug on someone’s car with physical occupation of space, like say a cop hiding in your closet. when in reality it’s more like a cop sitting on your roof—awkward, but not exactly occupying private space. 2nd, it doesn’t address the underlying issue: reasonable expectation to privacy. just as you’re not allowed to bug someone’s phone without a warrant, you’re not allowed to bug their movements either.
if a mafioso is talking on their cell phone walking down the street and you want to try to listen in by walking near the guy, you are welcome to try. that is reasonable and if the idiot doesn’t turn his back or lower his voice then there’s no expectation to privacy.
if cops want to invest man hours and helicopter fuel and department resources to orchestrate a coordinated surveillance effort to track someone’s movements, then fine, you can try and it’s the other guys responsibility to maintain his privacy. if he catches you in his rear-view mirror then he can lower his voice, or turn his back by going somewhere else or throwing you off his tail—it’s at least a fair game. but in reality the coordinated effort itself is its own safeguard against not having a warrant in the first place—it is expensive and you damn well better have good reason for the expense or you won’t have your job for long. in other words in practice, you might as well already have a warrant.
the difference in this case is that gps bugs allow for ubiquitous, warrantless, near resource-free surveillance of any ol body without hardly any accountability whatsoever—it’s an unreasonable breach of our expectation of privacy in our daily goings-ons. the us supreme court adopted a two-part test for determining whether this expectation has been violated in the katz v us in ‘67. it is a reasonable test and is the definition of the “living and breathing” nature of the constitution—unlike scalia’s interpretation. it’s reasonable by way of referring to whether “society in general would recognize [reasonable expectation] as such.” this is important because it gets to the heart of a social contract—common fucking sense. the black and white letters of the law do their best to concretize the soft, fuzzy, desires and narrative of common sense. that’s why referring to the constitution as if it were a stone tablet recording the perfect, immutable, timeless word of god is just plain stupid, because it’s not. the document is supposed to represent reasonable expectations as would be recognized as such by “society in general”; this interpretation unlocks the bill of rights from its ancient history and allows it to be interpreted by the common sense of society as society itself evolves over time—what society in general thinks today is surely different than 235 years ago—and that is a successful approach to interpretation.
ultimately, the problem is that by scalia’s line of reasoning, if the cops find a digital, non-physical way of tracking you, then that’s fine—just so long as “the government doesn’t occupy your personal property,” no problem. but obviously that’s bullshit. in essence, scalia rules against the state out of a technicality when he should be ruling against the principle.
—carlbgood](http://30.media.tumblr.com/tumblr_ly9djcjV5w1qas8z9o1_400.jpg)
Just decided: The Supreme Court decided in favor of nightclub owner Antoine Jones, convicted of drug conspiracy based partly on GPS evidence, saying that the federal government needs a warrant when using a GPS device to track someone. Here’s the decision. A key line from Antonin Scalia’s main opinion here: “It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”
at least they got the verdict right.
what the fuck does this have to do with a physical intrusion?? scalia is a clown—he has no business being a supreme court justice. see what kind of nonsense you get into with strict constructionism—everything in terms of ancient history—how about some modern common sense.
“We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”
“the government physically occupied private space,” “physical intrusion,” “when it was adopted”? this language does two things wrong, 1st it erroneously equates a bug on someone’s car with physical occupation of space, like say a cop hiding in your closet. when in reality it’s more like a cop sitting on your roof—awkward, but not exactly occupying private space. 2nd, it doesn’t address the underlying issue: reasonable expectation to privacy. just as you’re not allowed to bug someone’s phone without a warrant, you’re not allowed to bug their movements either.
if a mafioso is talking on their cell phone walking down the street and you want to try to listen in by walking near the guy, you are welcome to try. that is reasonable and if the idiot doesn’t turn his back or lower his voice then there’s no expectation to privacy.
if cops want to invest man hours and helicopter fuel and department resources to orchestrate a coordinated surveillance effort to track someone’s movements, then fine, you can try and it’s the other guys responsibility to maintain his privacy. if he catches you in his rear-view mirror then he can lower his voice, or turn his back by going somewhere else or throwing you off his tail—it’s at least a fair game. but in reality the coordinated effort itself is its own safeguard against not having a warrant in the first place—it is expensive and you damn well better have good reason for the expense or you won’t have your job for long. in other words in practice, you might as well already have a warrant.
the difference in this case is that gps bugs allow for ubiquitous, warrantless, near resource-free surveillance of any ol body without hardly any accountability whatsoever—it’s an unreasonable breach of our expectation of privacy in our daily goings-ons. the us supreme court adopted a two-part test for determining whether this expectation has been violated in the katz v us in ‘67. it is a reasonable test and is the definition of the “living and breathing” nature of the constitution—unlike scalia’s interpretation. it’s reasonable by way of referring to whether “society in general would recognize [reasonable expectation] as such.” this is important because it gets to the heart of a social contract—common fucking sense. the black and white letters of the law do their best to concretize the soft, fuzzy, desires and narrative of common sense. that’s why referring to the constitution as if it were a stone tablet recording the perfect, immutable, timeless word of god is just plain stupid, because it’s not. the document is supposed to represent reasonable expectations as would be recognized as such by “society in general”; this interpretation unlocks the bill of rights from its ancient history and allows it to be interpreted by the common sense of society as society itself evolves over time—what society in general thinks today is surely different than 235 years ago—and that is a successful approach to interpretation.
ultimately, the problem is that by scalia’s line of reasoning, if the cops find a digital, non-physical way of tracking you, then that’s fine—just so long as “the government doesn’t occupy your personal property,” no problem. but obviously that’s bullshit. in essence, scalia rules against the state out of a technicality when he should be ruling against the principle.
—carlbgood
