Government Continues To Pretend People Use Cell Phones Simply To Create A Wealth Of Data For Law Enforcement To Access Without A Warrant

from the let's-make-government-cell-phone-data-accessible-by-FOIA-request dept

You'd think approved warrants must be like albino unicorns for all the arguing the government does to avoid having to run one by a judge. It continually acts as though there aren't statistics out there that show obtaining a warrant is about as difficult as obeying the laws of thermodynamics. Wiretap warrants have been approved 99.969% of the time over the last decade. And that's for something far more intrusive than cell site location data.

But still, the government continues to argue that location data, while possibly intrusive, is simply Just Another Business Record -- records it is entitled to have thanks to the Third Party Doctrine. Any legal decision that suggests even the slightest expectation of privacy might have arisen over the past several years as the public's relationship with cell phones has shifted from "luxury item/business tool" to "even grandma has a smartphone" is greeted with reams of paper from the government, all of it metaphorically pounding on the table and shouting "BUSINESS RECORDS!"

When that fails, it pushes for the lower bar of the Stored Communications Act to be applied to its request, dropping it from "probable cause" to "specific and articulable facts." The Stored Communications Act is the lowest bar, seeing as it allows government agencies and law enforcement to access electronic communications older than 180 days without a warrant. It's interesting that the government would invoke this to defend the warrantless access to location metadata, seeing as the term "communications" is part of the law's title. This would seem to imply what's being sought is actual content -- something that normally requires a higher bar to obtain.

But the government never stops defending its normal M.O.: as much as possible with as little paperwork (and judicial oversight) as possible. Here it is responding to a letter sent by defendant Aaron Graham, who has been battling for suppression of 221 days worth of cell site location data (including nearly 30,000 specific data points) the government obtained without a warrant during its investigation of his involvement in a series of robberies.

Graham's letter cited the recent 11th Circuit Court ruling in the US v. Davis case, which found that the government violated the defendant's Fourth Amendment rights by obtaining mobile tracking data without a warrant. (Unfortunately, Davis was not awarded a retrial as the government demonstrated the warrantless collection was obtained "in good faith.") The government's response to this ruling (and its possibly favorable effect on the defendant) simply advises the Fourth Circuit Court that the 11th Circuit Court got everything wrong. (via Mike Scarcella)
In requiring a warrant to obtain cell-site records, however, the Eleventh Circuit erred. The Eleventh Circuit asserted that there is “a reasonable privacy interest in being near the home of a lover, or a dispensary of medication, or a place of worship,” 2014 WL 2599917 at *9-*10, but Fourth Amendment protection of information depends on how the government obtains information, rather than its nature.
So, rather than address the intricacies of the court's decision (that what used to be considered nothing more than "business records" are now very personal diaries of people's lives, thanks to the amount of data being gathered by cell providers), the government instead reiterates that it's entitled to warrantless access because it's always been entitled to warrantless access, technological advances and societal shifts be damned.
The government can obtain cell-site records with a 2703(d) order because they are business records stored at the provider’s discretion. See id. at 611-12. Bank records and dialed telephone numbers reveal far more sensitive, and far more particularized information than cell-site records, but no warrant is required to compel their disclosure.
Fair enough, but two things:

1) These "business records" are stored at the provider's discretion. Customers can't prevent the storage of certain records without forgoing service altogether. They also don't "reasonably" expect service providers to gather tons of data for law enforcement agencies to page through at their discretion. There's an expectation of privacy, albeit one that neither law enforcement nor service providers feel particularly compelled to address.

2) Shouldn't the question then be, why does law enforcement still have warrantless access to this "more sensitive" data, rather than, why doesn't law enforcement have more warrantless access?
Davis erred in distinguishing Miller and Smith by asserting that cell-site records are “not voluntarily disclosed.” 2014 WL 2599917 at *10. Smith assessed the information voluntarily disclosed from the standpoint of a well-informed customer, and cell phone companies inform customers that they collect location data.
The "well-informed customer" is hardly the average customer, and cell phone companies "disclose" plenty of info in pages and pages of fine print that no one ever reads. This shouldn't be taken to mean that customers are willingly generating a wealth of data for law enforcement to access at will. But the government reads all the fine print customers don't and chooses to believe every customer knows just how much info they're allowing law enforcement agencies to access without a warrant by simply turning on their cell phones. But the government's not done being disingenuous.
Moreover, when a business stores records at its discretion, it functions simply as a witness; the government may compel a witness to disclose records without a warrant regardless of whether the subject was aware the records were collected and stored.
This argument again tries to present the business collecting the records as the entity people should be directing their ire and astonishment at. If only these businesses didn't collect these records, then law enforcement wouldn't be able to access them. But much of what's collected is related to billing information, something these businesses don't collect voluntarily, but because it's essential to the business itself. People "consent" to this collection because the only way to opt out is to not use a phone. This hasn't been a practical option for several decades at this point. But the government continues to act as though people voluntarily generate evidence accessible without a warrant due to their insistence on using "optional" luxury devices. It's only very recently that the courts have started pushing back on this deliberately obtuse assertion, pointing out that circumstances have changed incredibly since the institution of the Third Party Doctrine, much less the Fourth Amendment itself.

Once again the question must be asked: what's so incredibly difficult about obtaining a warrant? In the case of Graham -- where over 200 days of cell site location data was acquired -- there obviously wasn't any timeframe concerns. And every law enforcement agency has built-in workarounds for exigent circumstances to be used in cases where time is of the essence. All of these arguments are the government aiming to maintain the status quo in the face of technological upheaval -- and with each passing day, the arguments seem a little more ignorant and petulant.

Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    That One Guy (profile), Jul 15th, 2014 @ 3:00am

    Limits and paper-trails

    Once again the question must be asked: what's so incredibly difficult about obtaining a warrant?

    Getting a warrant sets limits as to what can be gathered, the place to be searched, and what they're looking for, and can therefor be used as evidence. They also create paper-trails regarding these things, showing what evidence they had before-hand that justified the warrant, and that a second party(the judge), agreed that the evidence was sufficiently compelling to get a warrant.

    Now, if you have a solid idea as to what you're looking for, and enough evidence to back up your suspicions, then these factors aren't a problem. As has been shown, judges barely even glance at warrant requests, so getting one isn't going to be more than a minor chore at worst.

    On the other hand, if you don't have any solid evidence that a crime might be being committed, if the most you have is a hunch, a feeling, and you just feel like tossing someone's possessions/data 'just in case', with no idea just what you're looking for, then a warrant provides a huge obstacle.

    If you don't have any evidence to go on, and you don't know what you're looking for, rather difficult to get a warrant that matches, and will hold up under scrutiny('We have no idea what we're looking for, so we plan on just making it up as we go along' probably wouldn't go over too well with a judge).

    In addition, a warrant sets limits on what is being searched for, and where, and if you don't know either at the time, it's just a titch difficult to satisfy both of those qualifications. Without a warrant however, and assuming a spineless enough judge, then you can just grab everything you can, and sort through it later, which is a real time-saver when you're just chomping at the bit, eager to get on to the fun parts of the job(voyeurism as you sift through someone else's life, stacking charges to force a plea deal, that sort of stuff).

     

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    Ninja (profile), Jul 15th, 2014 @ 4:09am

    We should be relieved they are even trying to justify and bothering addressing the courts. If the Executive keeps this pace they'll be simply ignoring the judiciary and delivering their own sentences before long. The disregard for due process and the Constitution is simply astonishing.

    Throw a question at these morons: if that data was only available in printed paper at his house or at the company, would they need a warrant? Why everything is suddenly ok when technology is involved?

     

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  3.  
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    Anonymous Coward, Jul 15th, 2014 @ 4:59am

    "Bank records and dialed telephone numbers reveal far more sensitive, and far more particularized information than cell-site records"

    Tell that to individuals who've been blown to smithereens from drones and hellfire missiles. It doesn't get much more sensitive than that.

     

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  4.  
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    Geno0wl (profile), Jul 15th, 2014 @ 5:43am

    This seems like a perfect way to make money

    My biggest question is why have AT&T, Verizon, Ect, not started offering "Records Burning" of all past billing/GPS/Phone record item?


    Tired of the Government able to look at your records older than 180 days without your consent? Well have we got a deal for you! for only $7.99* a month have all your old GPS points, Phone call logs, and billing records deleted** from all prying eyes! Sign up now and your first week is free!

    *Plus applicable state and federal taxes and administative fees.
    **Only mostly deleted till they ask really nicely

     

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  5.  
    identicon
    Anonymous Coward, Jul 15th, 2014 @ 5:45am

    The REAL QUESTION!

    Why does this government think that ignoring the 4th should be pursued? Why does the peasantry of the US not understand what is happening?

    Why does everyone have to hold back on fighting the corruption of the government until someone has to start killing people over shit like this?

     

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  6.  
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    AJ, Jul 15th, 2014 @ 5:58am

    Thoughts ....

    The government sure is spending a stupid amount of money trying to track and record every thing i do, and do so with as little oversight as possible. I honestly don't understand why. I don't have that interesting of a life, and I'm hardly the exception in that matter, so whats the deal? It's not like were not already under their thumb....

    I was thinking about it last night, I don't actually own anything.. my house isn't mine.. even though on paper it "looks" like I do.. i stop paying my taxes (rent) for a month or two and I'm on the street. The government can steal whatever data they want whenever they want from my internet/phone so no virtual privacy. The gov has private courts that will issue no knock warrants any time they feel the need, and there are cameras friggin everywhere so i really have little to no physical privacy. Copyright has seen fit that all virtual property isn't actually mine, but rented...I don't own anything that can't be taken away with little to no recourse.... so actually....

    I really have nothing, but that also means I have nothing to loose. I kinda feel empowered, I wonder if that was the desired effect? I wonder if the Gov really grasps what they've done?

     

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  7.  
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    Anonymous Coward, Jul 15th, 2014 @ 6:04am

    Re: Limits and paper-trails

    Well now take down your fishing pole and meet me at the fishing hole...

     

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  8.  
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    lfroen (profile), Jul 15th, 2014 @ 6:15am

    Re: Thoughts ....

    >> The government can steal whatever data they want
    That's not a "theft", that's "infringement" according to this site. You see, you still have your data, so nothing is stolen.

    >> I really have nothing, but that also means I have nothing to loose
    Once upon a time, this logic was already applied: "You have nothing to lose but your chains!". Look it up.

     

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  9.  
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    David, Jul 15th, 2014 @ 6:47am

    Re: Limits and paper-trails

    You give a lot of convincing reasons why the government should desire access to records without warrant.

    And if there weren't such reasons, the writers of the Constitution would not have had cause to codify the 4th Amendment.

    They have drawn a line here exactly because the interests of a republic's citizens are at risk, and this risk needs to be individually assessed by a court accountable to the public in order not to evolve into a systematical erosion of citizens' standings.

    Personally, I consider the "Third Party Doctrine" that states that the government is entitled to know everything without oversight that has been volunteered to anybody else fabulously ridiculous.

    Privacy is not just concerned with matters nobody else knows. It is also about being able to share one's information with parties of one's choice without somebody in the background having the right to collect the data from all those different parties without notice.

     

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    art guerrilla (profile), Jul 15th, 2014 @ 6:51am

    foregone conclusion...

    not sure, but i don't think 'forgoing' is an alternate spelling of 'foregoing'...

     

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  11.  
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    Spaceman Spiff (profile), Jul 15th, 2014 @ 7:08am

    No warrent? Meh...

    "We are the government. We are here to protect you. Get over it!" :Rolleyes:

     

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  12.  
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    John Fenderson (profile), Jul 15th, 2014 @ 7:57am

    Re:

    This. I wouldn't say that bank records and dialed numbers are more sensitive than location data at all. They are just as sensitive.

     

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  13.  
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    John Fenderson (profile), Jul 15th, 2014 @ 7:58am

    Re: This seems like a perfect way to make money

    Because the major telecoms have "kissing the government's ass" as an essential part of their business plan. They need the government to give them licenses, contracts, favorable legislation, and all sorts of other things in order to keep doing business as usual.

    The government is a far more important customer than you or I.

     

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  14.  
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    John Fenderson (profile), Jul 15th, 2014 @ 8:00am

    Re: The REAL QUESTION!

    "Why does the peasantry of the US not understand what is happening?"

    Oh, most people understand completely. They've just been fooled into believing there's nothing they can do, and when you think there's nothing you can do then you do nothing.

    There are even numerous commenters here who are eager to inform us all of how we're all doomed and there's nothing that can be done. They are doing the work of our oppressors.

     

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  15.  
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    John Fenderson (profile), Jul 15th, 2014 @ 8:01am

    Re: Thoughts ....

    "I honestly don't understand why."

    Really? It's pretty obvious to me: it's all about control and power.

     

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  16.  
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    AJ, Jul 15th, 2014 @ 8:25am

    Re: Re: Thoughts ....

    "Really? It's pretty obvious to me: it's all about control and power."

    That's my point exactly. If someone has nothing/nothing to loose, what control or power can you really have over them?

     

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  17.  
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    Michael, Jul 15th, 2014 @ 8:30am

    Re: Re: The REAL QUESTION!

    shut up and pay your taxes.

     

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  18.  
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    Michael, Jul 15th, 2014 @ 8:35am

    Re: Re: Re: Thoughts ....

    Taking away everything - including their pride and self-respect - gives you incredible power over someone. Slaves (today, and the ones of the past) were not allowed to own anything. Ownership of things is for people. If you can strip away everything that someone has and make them totally dependent on you, they are being enslaved.

    I understand your "nothing to lose" argument, but psychologically, it is really the opposite, if you can really take away everything, you can often make someone much more compliant.

     

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  19.  
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    Anonymous Coward, Jul 15th, 2014 @ 8:39am

    Re: Re: The REAL QUESTION!

    "There are even numerous commenters here who are eager to inform us all of how we're all doomed and there's nothing that can be done. They are doing the work of our oppressors"

    I think quite the opposite, I think there is plenty to be done. I've written my Reps countless times, I've gone to rallys and called their offices. I always get the same canned response, and they always end up doing what the money wants them to do.

    My guess is, and this is just my opinion... the only way to stop it now is to do nothing... and I mean nothing. Farmers stop making food, Doctors stop treating patients, buses stop running, planes are grounded.. when the machine comes to a complete halt, then and only then will we have change... the money needs to stop flowing to fix the money problem, and IMHO that is what the problem is, money.

    Imagine the look on all the people's faces, especially the ones that have grown so used to riding on the cart, when everyone else stops pulling the cart.

     

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  20.  
    identicon
    Anonymous Coward, Jul 15th, 2014 @ 8:43am

    Re: Re: The REAL QUESTION!

    Well, not exactly... we are literally the informed minority. My efforts to change the voting patterns and concerns in my own family itself (and others) seems to fall upon deaf ears.

    Hell when the DHS went up, my own Special Forces retired family member said "This is a trustworthy guy" and approved of it. That same member now talks of very negative things, yet no matter what... still stuck on that damn party thing.

    Anything to stop the other party from wining including sacrificing some of our most important values in a bit for the lesser of 2 evils nonsense.

    I will try to do everything I can, including the doom and gloom speech until it is too late. At that point because of other convictions I cannot get involved.

    If we get the message out, we may still have a chance, but its been hard, and with the influx of illegals now going full steam ahead... we will not have a good chance.

    Illegals do not give a damn about liberty or law... they only give a damn about their family and a country with politicians promising to give them shit for from from the rich man. Its a recipe to destroy ANY NATION!

     

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  21.  
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    John Fenderson (profile), Jul 15th, 2014 @ 8:43am

    Re: Re: Re: Re: Thoughts ....

    This. The people who fight the hardest are the ones who have quite a lot to lose. People who actually have nothing to lose tend to just wither away.

    But AJ is being hyperbolic: he does, in fact, have a lot to lose. I'm sure he has friends and family, I'm sure that he has some freedoms left that he treasures, etc.

     

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  22.  
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    AJ, Jul 15th, 2014 @ 8:46am

    Re: Re: Re: Re: Thoughts ....

    "I understand your "nothing to lose" argument, but psychologically, it is really the opposite, if you can really take away everything, you can often make someone much more compliant."

    I don't know, i think that only works for the short term. Long term, people get sick and tired and rise up against oppression.. our history as humans is littered with it, i would even say we celebrate it. I think the short term mentality is what keeps getting our Gov into trouble, that and greed.

     

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  23.  
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    Anonymous Coward, Jul 15th, 2014 @ 9:02am

    Ask yourself why smartphone and os manufacturers aren't spear heading encryption and hardware privacy controls by default

     

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  24.  
    identicon
    Anonymous Coward, Jul 15th, 2014 @ 9:42am

    Re:

    Because they were paid off by the NSA, with taxes collected from you, supported by the political critter people voted into office! If you voted R or D in the last 2 decades you are most likely a PART OF THE PROBLEM!

     

    reply to this | link to this | view in thread ]

  25.  
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    John Fenderson (profile), Jul 15th, 2014 @ 9:43am

    Re:

    That's an easy one: because enabling meaningful encryption involves a level of inconvenience to users. Most users don't care much about security, but care a LOT about inconvenience.

     

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  26.  
    identicon
    AJ, Jul 15th, 2014 @ 9:48am

    Re: Re: Re: Re: Re: Thoughts ....

    "But AJ is being hyperbolic: he does, in fact, have a lot to lose. I'm sure he has friends and family, I'm sure that he has some freedoms left that he treasures, etc."

    How the hell do you know what I have to lose? What do you know of my family, friends or freedoms? You have no idea who I am or what my situation is.

    If you want to disagree with me fine, but don't start making assumptions regarding my personal situation unless you know me please.. it just makes you look like an ass.

     

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  27.  
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    John Fenderson (profile), Jul 15th, 2014 @ 9:54am

    Re: Re: Re: Re: Re: Re: Thoughts ....

    Lol! I was just assuming that you were a normal human being. I was complimenting you, not insulting you. However, I was clearly mistaken in that assumption so I take it back with my apologies.

     

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  28.  
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    AJ, Jul 15th, 2014 @ 10:00am

    Re: Re: Re: Re: Re: Re: Re: Thoughts ....

    Forgive me. I thought you were insulting me. They way you wrote your statement confused me and clearly I misread it. again, my apologies.

     

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  29.  
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    Anonymous Coward, Jul 15th, 2014 @ 10:28am

    Some time ago I had this little observation about the worth of a cell phone, it's continual bills, and distinct lack of privacy, and decided I didn't need one at all. At the time I had a used cell phone given to me. I dropped the account I had made and then quit charging the phone. That's been years ago and I have never repurchased another.

     

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  30.  
    identicon
    Michael, Jul 15th, 2014 @ 10:29am

    Re: Re: Re: Re: Re: Re: Re: Thoughts ....

    Yeah John, f*** you for agreeing with me!

    I have had enough of your bulls***! If I wanted you to point out that I probably have friends, family, a dollar or two in my pocket, etc., I would have asked you to step in and open your big f***ing mouth.

    You are totally wrong. I'm just a complete a**hole and really do have nothing to live for! Don't try to undermine my argument by giving me hope.

     

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  31.  
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    AJ, Jul 15th, 2014 @ 10:39am

    Re: Re: Re: Re: Re: Re: Re: Re: Thoughts ....

    I Lol'd, I deserved that.. I'm ultra tired today, I should have re-read his post instead of going off..... but instead all I have is this stupid fucking tee-shirt and a handfull of crow... such is life...

     

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  32.  
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    John Fenderson (profile), Jul 15th, 2014 @ 11:19am

    Re: Re: Re: Re: Re: Re: Re: Re: Thoughts ....

    No problem, AJ. I understand. Too often, I comment with the assumption that people can read my mind and know my intentions and neglect to make my meaning as clear as I should.

     

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  33.  
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    Michael, Jul 15th, 2014 @ 11:20am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Thoughts ....

    You got a funny vote from me if that helps.

     

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  34.  
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    M. Alan Thomas II (profile), Jul 15th, 2014 @ 12:17pm

    Fourth Amendment protection of information depends on how the government obtains information, rather than its nature.


    Wait, is the government arguing that the Fourth Amendment applies to all forms of information but doesn't require warrants?

     

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  35.  
    identicon
    Anonymous Coward, Jul 15th, 2014 @ 4:03pm

    Re:

    Really? You don't run into issues with work because of it now? I would do it too, except if I did I'd run into issues related to work and school.

     

    reply to this | link to this | view in thread ]

  36.  
    identicon
    Anonymous Coward, Jul 15th, 2014 @ 4:07pm

    All of these arguments are the government aiming to maintain the status quo in the face of technological upheaval
    Status quo? You can find out a lot more about a person by searching their phone than their home(ex: who they talk to, where they go, what they talk about, etc). This is about getting MORE information than a person around in 1950 would've even thought possible to gain without a large group working on gathering it.

     

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  37.  
    identicon
    Anonymous Coward, Jul 16th, 2014 @ 12:37am

    Re: Re:

    Therein is another modern problem, employers expecting to be able to contact their employees at any time, and expecting them to undertake work related activities at any time. With that goes the desire to limit the employees speech and activities to that which the employer approves of.

     

    reply to this | link to this | view in thread ]

  38.  
    identicon
    Anonymous Coward, Jul 16th, 2014 @ 3:47pm

    Wiretap warrants have been approved 99.969% of the time over the last decade.


    It is simply not possible for any human system to get it right this frequently. This means judges are not doing their job much of the time, instead acting as rubber stamps.

     

    reply to this | link to this | view in thread ]


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