Yet Another Court Explains To The Obama Administration That The 4th Amendment Means You Need To Get A Warrant

from the it's-sad-that-we-have-to-keep-doing-this dept

Just after an appeals court explained that, yes, emails are protected by the 4th amendment, another appeals court has ruled that cell tower connection info is also protected by the 4th Amendment. Basically, law enforcement (supported by the Obama administration) have been claiming that if they’re just getting info on who was connected to a specific cell tower, that it didn’t require a warrant at all.

Earlier this year, we noted that the Federal Circuit had rejected a similar request, saying that there was no probable cause, and in this case, the 3rd Circuit appeals court said that you do, in fact, need a warrant. Combined with other recent rulings that putting a GPS device on a suspect’s car without a warrant violated the 4th Amendment and that the famed warrantless wiretaps violated the 4th Amendment, and you see a whole bunch of 4th Amendment violations by our leaders lately.

Now, here’s the part I don’t understand: why is the government so anxious to wiretap/spy on people without a warrant? Getting a warrant is not difficult for the most part. The courts tend to defer to the government on such things most of the time. It’s not as if the courts are saying law enforcement can’t get this info. They’re just saying you have to go through basic due process to prove there’s a reason for doing what they’re doing. And yet the Obama administration (like the Bush administration before it) seem horrified at the idea that there should be some basic oversight over spying on Americans.

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Comments on “Yet Another Court Explains To The Obama Administration That The 4th Amendment Means You Need To Get A Warrant”

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Eugene (profile) says:

Re: Re: Re: Question for the USAians

People forget about the economic revolutions. Probably because they’re bloodless, and don’t come with flashy stories in the history books about idiots doing action hero crap.

In the quest for social stability though, pragmatism will always be a more powerful tool than sensationalism.

Hephaestus (profile) says:

Re: Re: Re:2 Question for the USAians

“People forget about the economic revolutions. Probably because they’re bloodless, and don’t come with flashy stories in the history books about idiots doing action hero crap.”

Funny thing that glory and honor crap. I would love to see a history book with a scientist in a lab coat being quoted as saying “Yeah I really fraked up the US government with that one little equation.”

When people think of revolutions they think guns, tanks, bombs, airplanes. The best way is to find the weak points that will cause the system to collapse into itself without firing a shot.

Christopher Gizzi (profile) says:

Change... not for the better.

Is it me or does it seem that the Obama administration has done more harm to our Constitutional rights than the past presidents? With all the treaties and laws being discussed that increase IP laws, unreasonable search tactics at airports, due process violations, and blatant censorship, it seems as if I’m less free than I was 2 years ago – and I was less free then as opposed to 8 years before.

Does anyone have an example of Obama fighting for our rights? You would think the EFF and ACLU would be filing less lawsuits against the government but it seems as if they’re pulling double time keeping up with the craziness.

I’m a little shocked and disappointed his administration is taking such an anti-consumer, anti-rights stance.

Russ (profile) says:

Re: Change... not for the better.

I disagree that his administration is worse than the previous in this regard; not that it is any better. There is not a whit of difference between Bush’s and Obama’s approach to respecting the Constitution.

Where I am encouraged is that the Court’s are now reflecting on the implications of this disregard and calling them on it. The farther we get from 9/11, the more we realize the sky is not falling and there is no need to panic.

Anonymous Coward says:

Re: Change... not for the better.

First off, you have to consider when this legal discussion started, which was back in the Bush days. The government almost without exception must continue to move forward with litigation on this level until it comes to an end, to make the case clear.

This ruling is on the appellate level, meaning there are still other steps to take. Remember, there are any number of lower court rulings that say the government does not need a warrant for this sort of stuff.

There is potential that the feds could carry this case all the way to the supreme court, seeing that it appears to be significant and relevant.

So it isn’t the “Obama adminstration”, rather it is the US government as a whole. Throwing Obama’s name in there is a nice attempt to pin the tail on the donkey, but the original donkey is from the other side.

Chris Rhodes (profile) says:

Re: Re: Change... not for the better.

There aren’t two sides, there is only one: The “Big Government” side.

Despite running on a platform of unprecedented transparency, Obama has doubled-down on Bush’s terrible record. Not only does his administration deny more FOIA requests than Bush, but he’s pushing for the power to use unmanned drones to assassinate US citizens overseas (Bush is probably sitting around in his ranch going, “Damn, why didn’t I think of that?”)

RD says:

Re: Re: Re: Change... not for the better.

“but he’s pushing for the power to use unmanned drones to assassinate US citizens overseas”

Er, yeah, right, I’m gonna call “bullshit” on this one. I mean, really, I like a good govt conspiracy argument as much as the next guy, but ASSASSINATE US CITIZENS OVERSEAS? REALLY? Citation or you are full of shit.

Anonymous Coward says:

Re: Re: Change... not for the better.

Come on people, this is Obama we are talking about. Sure past presidents may not deserve to over look the constitutionality of their actions but Obama has our best interests at heart and he deserves a chance. He only has four years because the Republicans are going to steal his presidency so he has to side step the constitution in order to fix our broken, horrible, terrible country. Lighten up and let the man rule.

nasch (profile) says:

Re: Re: Change... not for the better.

There is potential that the feds could carry this case all the way to the supreme court, seeing that it appears to be significant and relevant.

So it isn’t the “Obama adminstration”, rather it is the US government as a whole.

So which branch would be appealing this to the Supreme Court? Certainly not the judicial branch. The legislative branch doesn’t have anything to do with it. I guess that leaves the executive branch, which is led by – oh look, by the President! So yeah, it’s the Obama administration.

Gordon Peil (profile) says:

Re: Change... not for the better.

And I thought just the heading was funny enough, I guess I wasn’t aware of the comments on here. OMG! These are hilarious!!! It’s not the first time we have witnessed this from our SO CALLED “protectors” of the Law. I guess they DO NOT understand the concept of a “warrant,” or even the 4th. Amendment. That or they just don’t care, or believe that the Constitution doesn’t apply to them obeying, or even the oath they all take. We need to show them that we WILL NOT tolerate PERJURY. Nor infringement!

Anonymous Coward says:

Getting a warrant creates a paper trail. If there is a paper trail, terrorists can use their connections inside the government to find out when people are spying on them and know to keep quiet. I’ve noticed that a lot of the people who think that law enforcement should wait rather than take action are people who rally against the government on several issues (copyright, for example). It makes me wonder if Mike has connections to Al-Qaeda.

Bruce Ediger (profile) says:

Re: Terrorist Connections Inside the Government

Bravo! More! I laughed, I cried, I snorted coffee through my nose.

The Reanimated zombie of Joe McCarthy arises from the grave making weird, illogical, unsupportable accusations about links betwen questioning authority and “terrorism”, the communist boogeyman of the 21st century.

Tell you what: I’ll publicly announce my connection to AlQueda right after you publicly announce your name, professional affiliations and employer.

Almost Anonymous (profile) says:

Re: Re:

Dammit, you beat me to it.

FTA: “””…why is the government so anxious to wiretap/spy on people without a warrant?”””

All hilarity aside AC, your first sentence is in fact the correct answer.

“””Getting a warrant creates a paper trail.”””

That’s why, Mike, pure and simple. Plausible deniability.

ChimpBush McHitlerBurton says:

Re: Happy Paper Trails, to You.

Getting a warrant creates a paper trail. If there is a paper trail, Americans can use the Freedom of Information Act to find out when the Government is illegally spying on them and how to prevent it. I’ve noticed that a lot of the people who support 4th amendment breeches are people who support the Government on several issues (copyright, for example). It makes me wonder if AC has connections to the RIAA.


Anonymous Coward says:

Re: Re: Re:

I have one of those little snowflake thingies that identify me. You could read the rest of my comments and sort it all out for yourself. I know that you terrorist sympathizers don’t have much time on your hand what with the suicide bombings and whatnot but I would suggest taking a quick gander at a few other comments and get the gist of things.

Mike, is this one part of your cell?

Anonymous Coward says:

It isn’t operationally difficult to get a warrant, but it is difficult in the sense that a warrant must be supported by probable cause that a crime was committed. The police can’t just go on hunting expeditions through electronic data.

And that’s a real requirement. If it turns out the warrant was wrongly-issued, after the fact the defendant can move to exclude the evidence collected. The exclusionary rule isn’t a slam-dunk, but it does get applied and it does have teeth.

interval (profile) says:


I told all my liberal friends (I’m a committed centrist and libertarian) who were so happy when Obama got elected; “I’m not sure what you’re so happy about, you’re not going to get a gov. that’s fundamentally different from the one we’ve had since the 70’s.” And they all laughed in my face and said crap like he was the 2nd coming and its a new age and the hated Bush regime is smashed and crap like that. What they failed to understand is that the Fed. is a machine, pretty much on auto-pilot, doing what it does, which is spend our money and erecting huge, useless copies of itself every where it can. Obama’s not going to make any difference, and I was right.

ChimpBush McHitlerBurton says:

Re: Ha.

1) You are a master of the obvious.
2) Your so-called “Liberal” friends have little or nothing in common with real Liberals. I think they are more “retarded” than Liberal if they actually said that Obama was the “second coming”.
3) Given point 2: You hang out with retarded people who you misidentify as “Liberals”.
4) I gave Libertarianism a try for a couple of years. They are basically Republicans who don’t believe in the war on drugs. Otherwise, just as moronic as the other two parties.
5) What does “Centrist” mean anyway? Are you right in the middle between Dumbass and Dimwit? Congratulations. My advice: Pick something to stand for. Being in the middle or undecided is Pussy Territory.

(Committed Revolutionary)

ChimpBush McHitlerBurton says:

Re: Re: Re: Ha.

In a word? Deregulation.

One of the reasons I joined them was because I believed in their mission to get the Government out of everyone’s personal business. Problem is, these days companies are considered persons (Corporations), and Libertarians don’t seem to have a problem with that. I was “educated” at several Harry Browne events that everyone deserved to have the Government out of their affairs: The guy down the street, the small businessman in town, the regional chain store, the national mall brand, and the multi-national weapons conglomerate. All the same as far as they’re concerned.

Inasmuch as I’m a firm believer that the “Corporation” is one of the 4 Horsemen of the Apocalypse, and its invention will go down in history as being one of the reasons for the fall of the American Empire, I found the Libertarian favor for, much like the Republican lust of “Free Markets”, “Open Competition” and “Unfettered Business Practice” to be very much akin to their Pachydermous brethren.

In truth, Republicans, “Conservatives” and Capitalists have no love for truly Free Markets, choosing instead to form closed trade alliances whenever possible – No interest in Open Competition, opting instead for Monopolies whenever they can get away with them – And define Unfettered as “Completely Deregulated” if anyone will allow it.

Don’t get me wrong; Libertarians have lots of good ideas, and their heart is in the right place, but any belief system that says the Governor on the Engine of Capitalism should be removed because it’s bothersome…Is metaphorically speaking, a teenager with one foot in the grave and another on the gas pedal.

Sub-Prime Mortgage Crisis/Banking Meltdown anyone? You can thank Deregulation for that Gem.

(and yes, I blame both parties for that. Both. And one more time for you illiterate mouth-breathers…BOTH-ah)


Josef Anvil (profile) says:


Im not sure why blame is being placed on the Obama admin. This is all left over from the Bush admin. The wave of Anti-Terrorist sentiment that began after 9/11 made it clear to everyone in the US government that they could do just about anything they wanted to do and just slap the “national security protecting from terrorism” stamp on it.

Obama took office, but that doesn’t mean that the loads of politicians that took office because they were hard on terrorism are gone. They are still there in force and don’t want to have to deal with things like the Constitution when they want to get something done.

Russ (profile) says:

Re: Obama???

The point is that Obama runs the Justice department and although there may be options to bypass due process in law, the choice to do so and to litigate that position is entirely an administrations choice.

I don’t accuse of Obama doing anything new, I point out that he isn’t doing anything different. When your platform is ‘change’ and nothing changes, you can expect to get called on it.

Pwdrskir (profile) says:

Act of a patriot or Patriot Act?

These ruling are showing us the resulting push to increase presidential powers, started many years before Bush. Granted, Bush benefited from the Patriot Act installed by Congress, helping to further enhance the Executive branch?s powers.

Obama and every President forward will seek to increase and ?improve? the power of the presidency regardless of party affiliation. They do it to ?protect? us and their legacy. Its human nature to seek more control when threatened and terrorism is the inexhaustible source that will help every president challenge the Constitution under the guise of protection. We the People need our representatives to restructure the Patriot Act for a more focused purpose or remove it all together.

Michial Thompson (user link) says:

Re: Re:

The biggest problem with all this restructuring talk is “We the People” is made up of a HUGE percentage of Welfare recipients and unemployment recipients and social security recipients.

All of which would need to participate in removing the titt that they are all attached to… Would you give up your sole source of income without a fight?

Anonymous Coward says:

Re: Re: Re:

Fascinating. Neither you, nor anyone you know, has ever been out of work; and all the old folks you’ve ever known have been independently wealthy, and haven’t needed to draw down the money the government has withheld for them from their working years. Wish I was your relative! What a charmed existence…

Alan says:

bias showing

Funny how when the same stuff was done by the previous administration it was just the government but now it is ‘the Obama administration’

It is this kind of partisan mindless crap that makes some of your readers wonder if you can be trusted at all.

To be clear – this kind of government activity is wrong. IT has also been actively practiced by every administration since at least Nixon and probably long before that. It isn’t the administration that is actually doing it – it is the civil service government administration that does not change when President and Houses change. It would be the responsibility perhaps of the administration to change those entrenched policies but whether or not an administration tries (and I doubt we’d ever know if they did or did not) it is unlikely to make any difference in the long run.

Mike Masnick (profile) says:

Re: bias showing

Funny how when the same stuff was done by the previous administration it was just the government but now it is ‘the Obama administration’

This is not true. I was not a fan, at all, of the previous administration and called them on similar things. If anything I really did hope that the new administration would be much better. I’m calling them out, it’s because I’m disappointed that they appear to be just as bad, if not worse, than the previous one.

I’m neither a Democrat nor a Republican (nor any organized political party or philosophy). My position is not partisan at all. This is also why I don’t name the party that politicians belong to, because I think it turns the debates too partisan.

FMHilton (profile) says:

Funny, for a man who was a Constitutional Law Professor,

Obama seems to have forgotten a whole lot of what he supposedly taught in his classes: mostly the Bill of Rights and the Constitution. I seem to remember having heard that he was going to change this culture of fear when he was elected. Guess my hearing aids must have been broken, because he either forgot he said it, or it never happened.
The trend started with Bush II and has been continuing with great gusto no matter what the American people have to say about it.
That’s how the TSA, the Homeland Security Administration and a whole host of other entities are getting their power. They just push and push until someone says, “oh, just do it.”
They took the phrase “We can do it” literally.

Anonymous Coward says:

I believe the opposition to requiring warrants for this kind of data gathering goes a bit deeper than just “its easier and faster” or “we don’t want oversight”.

Based on the attempt at the Total Information Awareness program, and some of the details of the whole NSA / Telco program (debacle), I believe the ultimate goal is to monitor all cellular and or internet traffic.

Based on that, the rational for opposing warrants is 2 fold:

1. Legality: If they can get the courts to agree that it’s “OK” (legal) to grab cell connection info or ips for internet communications or whatever without a warrant (and without oversight for probable cause). Then, it follows that it’s also OK to just grab all the traffic info, all the time. So an opposite court ruling than the one mentioned above makes the whole thing, somewhat, legally justifiable.

2. Practicality: If it was OK to just grab all the traffic, it wouldn’t be feasible get a warrant for all the intercepts. It would require billions of warrants and there would be absolutely no probable cause for most, and

At that point, technically, all you’d need is to be plugged in to one of the main communication hubs. This is exactly what the NSA did with their warrant-less wire-tapping program.

Now, they are just trying to figure out a way to make it legally justifiable.

Most of the time says:

Not that difficult

The issue of a warrent not being difficult to get is not about how difficult they are in general, but how difficult they can be. Any time you add additional complications to a bureaucracy the risk of completing a task in a timely fashion goes up. It’s not an issue of what happens 95% of the time when things go smoothly, it’s what happens that other 5% of the time when you end up with someone trying to make a name for themselves or even mundane things like the judge who’s supposed to rule on the issue gets sick or stuck in traffic when the problem being faced is real time.

Normally these things take days, but sometimes they can get blown out into weeks for simple procedural issues, and that occasional delay on what might be critical information is what they’re trying to avoid. I don’t agree with it, and wouldn’t be willing to give up 4th amendment rights to prevent another attack, but I don’t think that what they are asking is completely out of touch.

Coward says:

Paperwork breeds laziness

I work in a job where before I make any changes to computer systems, I have to file “change requests” and wait days before they are approved, even if it’s something as small as say, turning off Windows Error Reporting on a system. I frickin’ hate this paperwork. It takes me forever to get anything done. Oops, left out a detail in my change requests, gonna have to refile it and wait for the committee to approve it all over again.

So it’s easy to see why law enforcement wants to skip the warrants. They’re a bunch of lazy asses that don’t want to file the paperwork and have it approved before they take what they consider to be the right actions, 4th amendment be damned. They just skip the “change requests” and implement the solution. In my job, if I do that and jack things up, I’d get shown the door. Someone needs to start showing these clowns that circumvent the protective measures in place (i.e. the 4th amendment) the door as its obvious that they are jacking up the system.

Peil (profile) says:


Tittle 18 USC Sec. 241. Conspiracy against rights:
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured – They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.

Tittle 18 USC Sec. 31. Definitions:
“(6) Motor vehicle. – The term “motor vehicle” means every description of carriage or other contrivance propelled or drawn by mechanical power and used for COMMERCIAL PURPOSES on the highways in the transportation of passengers, passengers and property, or property or cargo.”

Tittle 18 USC Sec. 9. Vessel of the United States:
The term “vessel of the United States”, as used in this title, means a vessel belonging in whole or in part to the United States, or any citizen thereof, or any corporation created by or under the laws of the United States, or of any State, Territory, District, or possession thereof.

More Info. Page 1 Page 2 ? 329 CONSTITUTIONAL LAW 11 Am. Jur. 2. LIBERTY
Cut and Past. “American Jurisprudence” It’s typically the very first link, it’s titled as above (((Page 1 Page 2 ? 329 CONSTITUTIONAL LAW 11 Am. Jur. 2. LIBERTY))) (PAGE 1135)

needy says:

with all the withdrawal of constitutional rights that’s going on, wont be long before it’s called the United States of China! everything as far as the restriction of peoples rights that happens in China, is decried by the US government, but is slowly being forced into being in USA. talk about hypocritical! to make things worse, they are trying to force other countries to do the same! what the hell is this really all about? world domination? God help us all!

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