privacy and 4A protections in a post-9/11 world

[cclaxton]

What if said metadata includes cell tower location, ala pings from your phone, allowing you to be physically tracked?

Is it reasonable for the gov't to track the location of citizens? I don't think so. Get a warrant. Which means do good law enforcement work. After you have the probable cause, then fine.
Cody

[Gadfly]

I recall many a debate in 4th amendment class on a "reasonable expectation of privacy" and the definition of "reasonable".

This was back in the pre cell phone, pre internet era.... If I use a payphone (remember those), and go into a phone booth and shut the door, I expect no one to listen. But if I use a pay phone bolted to the wall, and anyone can stand next to me waiting to use the phone next, and they can listen to my side of the conversation.... Do I have a reasonable expectation of privacy standing at an open payphone in a crowded subway station?

When your phone calls went through phone lines, you could expect the line itself to be secure, but when you use a cell phone, and the information is simply broadcast through the airways for anyone with an antenna to hear, do you get the same expectation of privacy?

Now, with cellphones data and info is just flying through the airwaves, or bouncing between 20 different servers, owned by 20 different companies, before reaching the person you want to talk with. How much privacy can be expected?

Even if we have a 4th amendment protection from Gov collection of data, what protection do we have from private collection?

[MGW]

What, are you going to just lock them in their rooms?

No. I meant lock down illegal immigration.

[TGS]

Is it reasonable for the gov't to track the location of citizens? I don't think so. Get a warrant. Which means do good law enforcement work. After you have the probable cause, then fine.
Cody

Without having ever been involved in a LE investigation, never been a criminal investigator, and not even a police officer, I think it behooves you to stop making so much judgement on what "good LE work" is in complex investigations. It's a little assuming....and a bit ridiculous.

Tech-based criminal intelligence operations have added a lot of capability for investigations. That does not make the investigators or analysts lazy, bad, incompetent or whatever baseless thought you fried up in that head of yours.

[Kingsfield]

This is interesting:

Today's 4A protects about as much or more than it has at any other point in our history. The 4A didn't really do much until 1961.

Supposing the observation extends to something not relying on the obvious difference arising from the incorporation of most of the Bill of Rights so as to apply to States, consider:

'Are papers of no pecuniary value but possessing evidential value against persons presently suspected and subsequently indicted under sections 37 and 215 of the United States Criminal Code, when taken under search warrants issued pursuant to the Act of June 15, 1917, from the house or office of the person suspected, seized and taken in violation of the Fourth Amendment?'

Answer: Yes.

Gouled v. U.S., 255 U.S. 298 (1921).

There the Court states:

Although search warrants have thus been used in many cases ever since the adoption of the Constitution, and although their use has been extended from time to time to meet new cases within the old rules, nevertheless it is clear that, at common law and as the result of the Boyd and Weeks Cases, supra, they may not be used as a means of gaining access to a man's house or office and papers solely for the purpose of making search to secure evidence to be used against him in a criminal or penal proceeding, but that they may be resorted to only when a primary right to such search and seizure may be found in the interest which the public or the complainant may have in the property to be seized, or in the right to the possession of it, or when a valid exercise of the police power renders possession of the property by the accused unlawful and provides that it may be taken.

[Tamara]

I don't think metadata collection from phone company records abridges the 4th.

While not offering any opinions on its constitutionality, the Second Circuit seemed to think it was illegal.

[joshs]

Supposing the observation extends to something not relying on the obvious difference arising from the incorporation of most of the Bill of Rights so as to apply to States, consider

No, it was exactly about incorporation of the 4A, that's why I said 1961. Since most criminal law existed at the state level, the lack of application of the 4A to state law enforcement essentially meant that it did very little for the average citizen. While there was a short time that the superior interest doctrine discussed in Gouled applied to the states (from 1961 to 1967) the later expansion of the the 4A to cover situations in which individuals have a reasonable expectation of privacy, which didn't start until 1967, still seems to favor the idea that we have more protection under the 4A today than we have in the past.

[cclaxton]

Without having ever been involved in a LE investigation, never been a criminal investigator, and not even a police officer, I think it behooves you to stop making so much judgement on what "good LE work" is in complex investigations. It's a little assuming....and a bit ridiculous.

Tech-based criminal intelligence operations have added a lot of capability for investigations. That does not make the investigators or analysts lazy, bad, incompetent or whatever baseless thought you fried up in that head of yours.

I don't think I ever said investigators are lazy or bad or incompetent, and that is not my intention. I am also not trying to suggest that I have expertise in law enforcement or investigations, other than what I know as a layman. But if law enforcement can take a short cut...they will...just like anybody doing any job. I was simply suggesting that law enforcement should not violate people's privacy and protections against unreasonable surveillance, and good LE investigations should get the same results. Or, are you saying it can't be done without these methods?
Cody

[RoyGBiv]

Some of my concerns center around currency controls, including the reporting of cash transactions of $5000 or more and the limitations of printing of $50, $100, and $500 bills. Every try to get $100 bills from an US-based ATM? That is easier to do overseas than in the USA. Ever try to withdraw $6000 or so in cash from a bank? It starts a process that involves lots of questions that the bank is required to ask and involves a lot more delay than for asking for a cashier's check for ten times the amount. That is done in the name of combating drug trafficking and funding terrorism. Why does fed.gov need to know that I am depositing or spending cash without the legal protections provided by the warrant process?

Sample size of 1...

I purchased a used car a few weeks ago. Met the seller at my bank where I handed a >$6000 withdrawal slip to the teller, together with my DL. The only thing the teller asked was "how would you like that, Sir?"

[cclaxton]

No, it was exactly about incorporation of the 4A, that's why I said 1961. Since most criminal law existed at the state level, the lack of application of the 4A to state law enforcement essentially meant that it did very little for the average citizen. While there was a short time that the superior interest doctrine discussed in Gouled applied to the states (from 1961 to 1967) the later expansion of the the 4A to cover situations in which individuals have a reasonable expectation of privacy, which didn't start until 1967, still seems to favor the idea that we have more protection under the 4A today than we have in the past.

Josh,
What role does the establishment of the "Right to Privacy" play in this discussion, as it relates to the outcome of Griswold v. Connecticut?
The 4th seems to address the right of the State to conduct a criminal investigation and seize evidence, etc. But doesn't the penumbra of rights established by the court in Griswold built a higher wall for government to climb?
Cody