Fourth Amendment - Tilted Forum Project Discussion Community

dksuddeth · 05-01-2006, 12:20 AM

The 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.

50 years ago, this amendment meant something. Since the 90s, it doesn't mean much at all.

Sneak and Peek warrants are the order of the day for the FBI, all an agent has to do is state that the warrant is needed for a terrorism investigation. Patriot Act aside, this amendment should be one of the most important for the right to privacy from government intrusion that it entails, but it's not. One has to wonder if it's a right anymore.

Take the Cory Maye case. A black man in Mississippi who shot at a man who had just busted down his back door. Cory Maye, in fear of his life and that of his baby daughters, had no idea he had just shot a police officer. A police officer who was serving a 'no knock' warrant for the apartment next to his. Even though the police didn't have a warrant with Corys address on it, nor did they have probable cause to apply for a warrant, he was tried, convicted, and sentenced to death for the murder of that police officer, who just happened to be the son of the Police Chief.

While the Fourth Amendment forbids the police from conducting unreasonable searches and seizures, the Supreme Court has found a way to circumvent that guarantee. The FBI suspected Nicodemo Scaro, the sone of incarcerated mob boss 'Little Nicky' Scarfo, of masterminding a loan sharking and gambling operation in New Jersey and raided his office in January 1999. The agents copied the contents of Scarfo's computer hard drive, but were not able to read a single file. Scarfo had installed an encryption program, PGP, which required a user password. The FBI tried, but failed, to crack that password. Having failed to access Scarfo's files using standard law enforcement techniques, the FBI's last hope was to break the law. If the FBI were ablot to obtain Scarfo's password, they could simply type it in and bypass the encryption software. Accordingly, they sought to install a 'key logger' software package on to Scarfo's computer.

Agents approached a federal magistrate judge about their failure to obtain Scarfo's password and asked for "authority to search for and seize encryption-key-related pass phrases" and to "install and leave behind [technologies] which will monitor the inputted data entered on [Scarfo's] computer by recording the key related information as they are entered."

The U.S. Magistrate concluded that it was now acceptable for the FBI to break the law because "normal investigative procedures to decrypt the codes and keys encessary to decipher the....encrypted computer file have been tried and failed. With complete disregard for Scarfo's privacy, this judge authorized the FBI to break into Scarfo's office as many times as necessary to deploy, maintain, and remove "recovery methods which will capture teh necessary key-related information and encrypted files."

Even though Scarfo was suspected of loan sharking, not terrorism, the government cited "national security" concerns and refused to disclose any information about the mechanism to Scarfo's attorneys.

The federal district judge was inclined to defer to the FBI's authority. the government, fearing that an appeals court was likely to order the FBI to disclose this 'key logging' technology, which would have shown a clear violation of the Fourth Amendment, arranged a plea bargain with Scarfo.

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How important is the Fourth and how far does the public interest go in superceding this right?

The_Jazz · 05-01-2006, 07:36 AM

How important is the Fourth Amendment? I'd put it up there with the First as being the most important of all of them.

The second part of the question troubles me. I don't think that the right is ever "superceded" except by an unconstitutional act. The government has not only the right but the duty to conduct searches. I don't think any of the families of the victims of the BTK killer would argue that searches were innappropriate ways of bringing him to justice. Nor would the people of Tennessee whose governor sold pardons to convicted murderers in the late 70's.

Of the examples you gave, I'm not familiar with the Maye case. From the story posted, it looks like more like another case of a black man being railroaded in Mississippi than a 4th Amendment issue since the warrant wasn't for his home and it was incorrectly served. The warrant played little or no role in the misfortune.

The Scarfo case is something that I have been following, although for different reasons completely. I agree that the open-ended warrant is troubling, but it also seems pretty clear that this was a bad guy. Not that good or bad should play any role in whether or not a warrant is issued, but the guy did have prior convictions. The only thing that is a problem here is the permission to enter as many times as necessary portion of the warrant, but the rest of it seems totally reasonable. He was suspected of loan sharking, which is a crime.

dksuddeth · 05-01-2006, 08:09 AM

in regards to the scarfo case, should constitutional rights be held in even more importance when it concerns criminal investigations?

he was suspected of loan sharking, and I can only assume that the first warrant to copy the hard drive was legally obtained since there's no detail or evidence otherwise, but do we lessen the strength of rights for suspects?

The_Jazz · 05-01-2006, 08:28 AM

DK, I'm not sure that I understand your question. To me, the whole Scarfo case seems like it only nibbles the edge of the 4th Amendment issues. That is - is it ok to grant a warrant to allow multiple physical entries to capture the password. I would assume that if the judge was going to grant this kind of leeway, he must have severely tightened the rest of the warrant so that, for instance, any cocaine found in the closet would be inadmissable since the computer was in the middle of the office.

Can you flesh out your disagreements here so that the sick and sleep-deprived (me) can understand it?

dksuddeth · 05-01-2006, 08:59 AM

well, basically what i'm getting at is do people think it is ok for the government/law enforcement to break the law when standard/legal law enforcement practices don't work? As in Scarfo, by the judge allowing the FBI to break and enter multiple times to monitor the key logging software for passwords.

Also, to claim national security for a gambling operation?

The_Jazz · 05-01-2006, 09:17 AM

Sorry for being dense. Now that I reread your first reply, I get it.

I don't see where the the government broke the law or the constitution here. The law allows them to enter a premises secretly to place, for instance, a listening device. I don't see how that's any different in the Scarfo case or how it's disallowed by the 4th. Again, I agree that the open-ended nature of the warrant is troubling, and if I had been the judge, I would never have agreed to that kind of warrant. I also don't see a problem with the keystroke log since they apparently had evidence of a crime being committed or documented on that computer.

The national security claim for the gambling operation seems a little farfetched, and I purposefully didn't address that in my original rebuttal. Now that the cat's out of the bag - this seems like bullshit and again presupposing that I'm the judge, I would have told the agents that. It's also perfectly reasonable that there's some truth to it and that we're not privy to that information, but I don't find it very likely.

dksuddeth · 05-01-2006, 09:40 AM

Quote:

Originally Posted by The_Jazz

I don't see where the the government broke the law or the constitution here. The law allows them to enter a premises secretly to place, for instance, a listening device.

what law, and how do we get laws that are intentionally circumventing the bill of rights?

Quote:

Originally Posted by The_Jazz

I also don't see a problem with the keystroke log since they apparently had evidence of a crime being committed or documented on that computer.

Not that I've got great detail on this particular case, but according to the 4th, 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.would seem particularly relevant. Again, without a lot of detail it is very difficult to ascertain what evidence was used to get the original warrant, but I'm having a very hard time acknowledging the constitutionality of the repeated entries when they already had a copy of the hard drive. Because they aren't smart enough to have foreseen encryption means they can break the law to get the evidence they need? slippery slope if you ask me.

The_Jazz · 05-01-2006, 11:29 AM

Quote:

Originally Posted by dksuddeth

what law, and how do we get laws that are intentionally circumventing the bill of rights?

I think that you're intentionally ignoring the fact that the Constitution and by proxy the BOR has to grow to accomodate new technologies. Given the advent of recording technology, I easily see how it's possible to write a warrant to gather information on an ongoing basis at a particular place. Assuming that a warrant detailing exactly what is going to happen is in place, I don't see how a criminal has a reasonable expectation to privacy in the commission of a crime. A warrant ensures that a judge will be reviewing the rationale and confirming the expectation that a crime is being committed. If not, then I completely agree with you.

Quote:

Originally Posted by dksuddeth

Not that I've got great detail on this particular case, but according to the 4th, 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.would seem particularly relevant. Again, without a lot of detail it is very difficult to ascertain what evidence was used to get the original warrant, but I'm having a very hard time acknowledging the constitutionality of the repeated entries when they already had a copy of the hard drive. Because they aren't smart enough to have foreseen encryption means they can break the law to get the evidence they need? slippery slope if you ask me.

I don't see what your objection is here. As long as the warrant describes that the agents are going to place some sort of keystroke counting virus on the offending computer in order to decipher the seized hard drive, there doesn't seem to be a constitutional conflict. Let's put it in pre-computer terms. Let's say that the government seized a log book of loan shark agreements that was in code, but they couldn't crack it. If they discovered that the key to the code was stored in another location, wouldn't a second warrant be appropriate? Again, the multiple physical entries troubles me, but that's something altogether different.

Willravel · 05-01-2006, 11:38 AM

This is what I call the 'stay out of my kitchen' amendment. Unreasonable search and seizures are the staple of a society that chooses the illusion of safety over freedom, and represents a greater insecurity and lack of power in the populace. No government organization should have the authority to search and sieze at their discretion without reasonable evidence. If a police officer wants to come into my house, there had better be a reason.

dksuddeth · 05-01-2006, 11:52 AM

Quote:

If they discovered that the key to the code was stored in another location, wouldn't a second warrant be appropriate?

I'd say no, but that happens all the time now.

example: law enforcement suspects criminal activity, based on information obtained by third party.

law enforcement gets warrant based on info, sieze items from home, take to lab, investigate.

Nothing substantial is found in that stack, so go ask for other warrant based on last info plus terrorism/national security, and add extra items to be siezed.

bring extra items back, find nothing.

get another warrant based on same for yet more items.

at some point, where do you label it a fishing expedition?
If you didn't find any evidence after the first time, you should be cut loose.

The_Jazz · 05-01-2006, 01:00 PM

See I say "yes" because of exactly the reasons that you've listed. The government thought they had something but couldn't understand what they had without the key/password.

Let's put it in another light - what if during the serving of a completely legitimate search warrant for a completely open-and-shut murder case, the murder weapon is discovered on top of a map labeled "other murders" showing where other bodies are buried. Is that map off limits and therefore the other murders? A search warrant is necessary to investigate those other murder sites since they're all private property. I can't imagine that there's some invisible line being crossed here. The courts have held that those engaged in criminal enterprise have no right to privacy and indeed it seems like more of a common sense issue to me than a Constitutional one.

If the government has credible evidence that a crime is being committed, then I wholeheartedly support their duty to collect evidence on that crime. The 4th does not define "unreasonable", but I agree that there is a point where a line is crossed between execution of a duty and harrassment.

dksuddeth · 05-01-2006, 01:42 PM

Quote:

Originally Posted by The_Jazz

Let's put it in another light - what if during the serving of a completely legitimate search warrant for a completely open-and-shut murder case, the murder weapon is discovered on top of a map labeled "other murders" showing where other bodies are buried. Is that map off limits and therefore the other murders? A search warrant is necessary to investigate those other murder sites since they're all private property. I can't imagine that there's some invisible line being crossed here.

In this instance that you've described, i'd say they are perfectly within the law to get warrants for the other places specified on the map. This isn't quite in line with the scenario I had above though. Say, for instance, your scenario warrants don't come up with anything. no bodies or evidence that there was anything buried there. Should the police be able to go back to the home where they found that map and now search the entire place because they stumbled upon something that looks to have been faked or didn't turn up any crime?

Quote:

Originally Posted by The_Jazz

The courts have held that those engaged in criminal enterprise have no right to privacy and indeed it seems like more of a common sense issue to me than a Constitutional one.

If the government has credible evidence that a crime is being committed, then I wholeheartedly support their duty to collect evidence on that crime. The 4th does not define "unreasonable", but I agree that there is a point where a line is crossed between execution of a duty and harrassment.

and this is where the grey line for scarfo comes in. They could find no evidence because of the encryption, so they were allowed basically unfettered access multiple times with only the one warrant. Would anything that he typed on the computer at that time be subject to prosecution?

The_Jazz · 05-02-2006, 04:58 AM

OK, let me change my scenario a bit to make it match up with Scarfo a little better. In my murder case example, let's posit that the map found is labeled "murder map" but appears blank. Someone tells the police that it's drawn in invisible ink and you need special glasses to read it, glasses that are stored at a second site. Isn't it reasonable to go to the judge with exactly the same evidence they had to get the first warrant with the addition of the new glasses statement to get a warrant for the glasses?

Turning back to Scarfo specifically, you're right that they could not find any evidence on the computer because of the encryption, but they still had whatever evidence allowed them to get the warrant in the first place. The arguement here is not whether or not the original warrant was granted on flimsy evidence (given the eventual outcome, I'd argue that it was not) but the open-ended nature of the second warrant.

As far as the specific information gathered by the keystroke counter, I guess it would depend on what was allowed by the warrant, although in practice once they had the password, it would be a moot point. If I were the judge and were somehow convinced to grant this kind of open-ended warrant, I would compensate by tightening down the kind of information the government was allowed to gather, but that's a personal opinion.

DK, I'm a little surprised at you on this one - usually your examples are much stronger on Constitutional issues. The Scarfo case might be in a slightly grey area, but you usually offer up clear black and white issues. The Maye case doesn't seem to be a Fourth Amendment issue at all. If anything, it's a 2nd Amendment test since there doesn't seem to be any issue about the warrant itself. Not that I'm not enjoying our little exchange here, but it's just a lot more fun when we both argue from strong positions instead of splitting hairs.

dksuddeth · 05-02-2006, 06:31 AM

Quote:

Originally Posted by The_Jazz

DK, I'm a little surprised at you on this one - usually your examples are much stronger on Constitutional issues. The Scarfo case might be in a slightly grey area, but you usually offer up clear black and white issues. The Maye case doesn't seem to be a Fourth Amendment issue at all. If anything, it's a 2nd Amendment test since there doesn't seem to be any issue about the warrant itself. Not that I'm not enjoying our little exchange here, but it's just a lot more fun when we both argue from strong positions instead of splitting hairs.

the maye case is a combination of both, in my opinion.
The shooting should have been justified as self defense because of the circumstances precipitated by the 'no-knock' warrant as well as invading the wrong apartment. The warrant was written for the neighboring apartment, subsequent evidence shows that the maye apartment was hastily added after the shooting fact, but there are claims that mayes apartment was not on the original warrant.

I didn't focus on 2nd amendment issues in the maye case because I felt that the 4th amendment was the most important issue here. Since the 4th was violated the 2nd should have been a no brainer. It's not worked out that way yet for Maye though I hope that he does get the new trial and can be exonerated.

The_Jazz · 05-02-2006, 06:47 AM

DK, I finally got a chance to read the Maye link that you posted. Assuming that Wikipedia is accurate (I actually cringed writing that phrase), then I still don't see how this particular case is a big 4th Amendment test. The controversy seems to center around whether or not the police announced before entering, but I didn't see any activity that seemed like a blantant violation of the 4th. There was probable cause at the time (although in retrospect it was wrong), the warrant described what and where was being search and for what purpose. In your very first post, you mentioned that the warrant did not list Maye's address, but Wikipedia says the opposite although it allows that it does not mention Maye specifically. Again, I don't find this unreasonable given the nature of the alleged crime.

flstf · 05-02-2006, 07:15 AM

It looks like it wont be long before ISP's are required to monitor our on-line activity just in case we may be doing something illegal. I'm not sure if the 4th amendment should cover things like this but forcing a communication provider to keep records on you in case you may violate the law someday does not seem right. Isn't this like requiring the phone companies to record all our conversations?

Congress may consider mandatory ISP snooping
It didn't take long for the idea of forcing Internet providers to retain records of their users' activities to gain traction in the U.S. Congress.

--snip--
Colorado Rep. Diana DeGette's proposal says that any Internet service that "enables users to access content" must permanently retain records that would permit police to identify each user. The records could not be discarded until at least one year after the user's account was closed.
--snip--
Jim Harper, director of information policy studies at the free-market Cato Institute, said: "This is an unrestricted grant of authority to the FCC to require surveillance."

"The FCC would be able to tell Internet service providers to monitor our e-mails, monitor our Web surfing, monitor what we post on blogs or chat rooms, and everything else under the sun," said Harper, a member of the Department of Homeland Security's Data Privacy and Integrity Advisory Committee. "We're seeing a kind of hysteria reminiscent of the McMartin case. The result will be privacy that goes away and doesn't come back when the foolishness is exposed."

The McMartin case was probably the most extreme example of the hysteria over "Satanic ritual abuse"--a widespread scare in the 1980s that children were molested, murdered and tortured, even though no evidence was found. In the McMartin preschool case, a family was falsely accused of Satanic activities and the charges were eventually dropped.

At the moment, Internet service providers typically discard any log file that's no longer required for business reasons such as network monitoring, fraud prevention or billing disputes. Companies do, however, alter that general rule when contacted by police performing an investigation--a practice called data preservation.

The_Jazz · 05-02-2006, 08:20 AM

fistf - I'm not sure what the insult to the the 4th Amendment is if I read the article correctly. It appears to me that the 96 law already requires data preservation for 90 days, and the proposed law would shift that to a permanent record which, theoretically, would be available upon presentation of a warrant. ISP's don't normally share their information without a warrant as it stands, and they've been storing 90 days worth of information for 10 years now. As I read it, the ISP isn't required to hand over all permanent records, but they do have to have it available.

dksuddeth · 05-02-2006, 08:28 AM

What would you consider protected by the fourth amendment then, Jazz? You said it was the most important, right up there with the first, yet you've only questioned one item about the open ended warrant as being a possible violation.

Please, let us know what you think is protected by the fourth.

flstf · 05-02-2006, 09:08 AM

Quote:

Originally Posted by The_Jazz

fistf - I'm not sure what the insult to the the 4th Amendment is if I read the article correctly. It appears to me that the 96 law already requires data preservation for 90 days, and the proposed law would shift that to a permanent record which, theoretically, would be available upon presentation of a warrant. ISP's don't normally share their information without a warrant as it stands, and they've been storing 90 days worth of information for 10 years now. As I read it, the ISP isn't required to hand over all permanent records, but they do have to have it available.

You are probably right in that the courts have/will say that this monitoring activity is OK. I guess I look at it as if the postal dept. is required to open and copy all your mail or asking the phone company to record all your conversations. Also, the proposal is to maintain our activity and correspondence for one year but I can easily see them requiring them to monitor you forever.

I think I read a while back in one of Bill Gate's books where he predicted that one day we would all be required to carry credit card sized GPS trackers and the info would be fed into national computers so the gov would know where you were within a few feet during your lifetime. This is to protect you from being charged for crimes when you were not there, etc.., LOL.

I wonder how far our government should be allowed to monitor us and whether we have any constitutional protection against blanket surveillance.

The_Jazz · 05-02-2006, 09:12 AM

There's lots of stuff protected by the Fourth, but it's not overt. The police can't just show up at my house for no reason and go through my stuff without a warrant. The government can't listen to my phone calls as a matter of course without a warrant. They can't arrest me because I look "funny". These are all lack of actions, which is hard to prove. The important thing is that government action against me requires a warrant. If they want to arrest me, search my home or take my stuff, they have to have to present probable cause and swear to it in front of a judge who may or may not choose to believe them or agree that there is enough probable cause to issue the warrant.

Both of the cases that we've discussed have involved warrants that may or may not have been issued incorrectly. There haven't been any warrantless searches or seizures. That was my entire point about splitting hairs - we're talking about typos or multiple entries to accomplish one specific task. If the police raided Mr. Mayes' home without a warrant or entered Mr. Scarfo's office a second time but without a warrant, then I would wholeheartedly agree, but I don't really see how the 4th Amendment is really being violated in either case. The 4th specfically requires arrest and search warrants and since they are being issued and served, I don't see where we've been discussing much more than the very edge of the 4th Amendment.

The_Jazz · 05-02-2006, 09:14 AM

Quote:

Originally Posted by flstf

You are probably right in that the courts have/will say that this monitoring activity is OK. I guess I look at it as if the postal dept. is required to open and copy all your mail or asking the phone company to record all your conversations. Also, the proposal is to maintain our activity and correspondence for one year but I can easily see them requiring them to monitor you forever.

I think I read a while back in one of Bill Gate's books where he predicted that one day we would all be required to carry credit card sized GPS trackers and the info would be fed into national computers so the gov would know where you were within a few feet during your lifetime. This is to protect you from being charged for crimes when you were not there, etc.., LOL.

I wonder how far our government should be allowed to monitor us and whether we have any constitutional protection against blanket surveillance.

Please correct me if I'm wrong, but I read the article to say that an ISP is required to simply maintain a record that you sent an email or looked at a sight, not what that email said or what you specifically posted to that site. I see it as more of a phone company analogy where they maintain a record that you called a specific number but not what you said. Did I misread the data being collected?

flstf · 05-02-2006, 10:26 AM

Quote:

Originally Posted by The_Jazz

Please correct me if I'm wrong, but I read the article to say that an ISP is required to simply maintain a record that you sent an email or looked at a sight, not what that email said or what you specifically posted to that site. I see it as more of a phone company analogy where they maintain a record that you called a specific number but not what you said. Did I misread the data being collected?

You could be right in your interpretation of the existing law but I'll be darned if I can figure it out. The link for what I think is the existing law is below:

Quote:

ELECTRONIC COMMUNICATIONS AND TRANSACTIONAL RECORDS ACCESS
The part that covers retention time is :

(f) Requirement to preserve evidence.--

(1) In general.--A provider of wire or electronic communication services or a remote computing service, upon the request of a governmental entity, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process.

(2) Period of retention.--Records referred to in paragraph (1) shall be retained for a period of 90 days, which shall be extended for an additional 90-day period upon a renewed request by the governmental entity.

I think the paragraph (1) being referred to is:

(a) Contents of wire or electronic communications in electronic storage.--A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant. A governmental entity may require the disclosure by a provider of electronic communications services of the contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for more than one hundred and eighty days by the means available under subsection (b) of this section.

(b) Contents of wire or electronic communications in a remote computing service.--(1) A governmental entity may require a provider of remote computing service to disclose the contents of any wire or electronic communication to which this paragraph is made applicable by paragraph (2) of this subsection--

Even if this is interpreted to be only the records of correspondence and not the contents I still don't like it. Then I guess it would be like asking the postal dept. to keep a record of every letter you send and receive. It still seems like blanket surveillance of citizens activities.

The_Jazz · 05-02-2006, 11:11 AM

Ok, I think that I understand it better now that you've given me the statutory language. It appears to me that contents of emails are required to be kept by service providers. However, it also explicitely states that this information can only be accessed by a warrant. It is legal for the government to read your mail - if they have a warrant. It is legal for the government to listen to your phone calls - if they have a warrant. It is legal for the government to listen to the conversations you have with your wife in bed - if they have a warrant. All this law does is make that kind of surveillance accessable to the government so that they can get use a warrant to access it.

They still need to show probable cause to a judge. As I mentioned before, criminals have no right to privacy. It's the narrowest implied meaning of the 4th Amendment. Its since been expanded, but I don't think that any sane person would argue that the government doesn't have the right and duty to listen in on your plans to use your Acme Brand slingshot to launch yourself into Yankee Stadium in order to smack that smug look off of Jeter's face. One of the fundamental roles of government is to protect the population - not that Jeter doesn't deserve to be smacked.

flstf · 05-02-2006, 11:19 AM

Quote:

Originally Posted by The_Jazz

Ok, I think that I understand it better now that you've given me the statutory language. It appears to me that contents of emails are required to be kept by service providers. However, it also explicitely states that this information can only be accessed by a warrant. It is legal for the government to read your mail - if they have a warrant. It is legal for the government to listen to your phone calls - if they have a warrant. It is legal for the government to listen to the conversations you have with your wife in bed - if they have a warrant. All this law does is make that kind of surveillance accessable to the government so that they can get use a warrant to access it.

They still need to show probable cause to a judge. As I mentioned before, criminals have no right to privacy. It's the narrowest implied meaning of the 4th Amendment. Its since been expanded, but I don't think that any sane person would argue that the government doesn't have the right and duty to listen in on your plans to use your Acme Brand slingshot to launch yourself into Yankee Stadium in order to smack that smug look off of Jeter's face. One of the fundamental roles of government is to protect the population - not that Jeter doesn't deserve to be smacked.

I guess the Red Sox fans will love your Jeter analogy.

Does it bother you at all that they may require ISPs to maintain your correspondence and activity for long periods of time just on the chance that you may break the law someday? Couldn't they also then require the telcoms to record all your calls in case they may need/want them in the future? All with a warrant of course.

The_Jazz · 05-02-2006, 11:47 AM

Quote:

Originally Posted by flstf

I guess the Red Sox fans will love your Jeter analogy.

Does it bother you at all that they may require ISPs to maintain your correspondence and activity for long periods of time just on the chance that you may break the law someday? Couldn't they also then require the telcoms to record all your calls in case they may need/want them in the future? All with a warrant of course.

I had a better analogy, but I decided it was too Chicago-centric. Unless you live here, you probably have no idea who Ronnie Woo-Woo is.

I think that you're missing one of the fundamentals of the legislation - they aren't maintaining the records because of a future crime. They want to know about the crime you're committing with these specific transactions, emails and site visits right now. If we're involved in, say, a criminal conspiracy to smuggle black market oregeno and basil into the country, they want to be able to trace it. There's nothing in this wording that gives the government the right to just go and say "we want to see all the emails from all subscribers for May 2, 2006". They need to get a warrant saying that they want to see all emails that fistf and The_Jazz have sent, most likely with a filter for only the emails we send each other unless the government can demonstrate to a judge that there are other co-conspirators.

As far as wiretaps go, I believe that the government has 30 seconds to confirm that the call involves one of the suspected conspirators or that the topic discussed is connected to the conspiracy. For instance, they could listen to our conversations with each other or the ones where I try to unload the oregeno on local pizza parlors at bargain basement prices, but they can't listen to me talking to my mom. If I'm talking to my doctor or lawyer, they have to discontinue the tap immediately since these are both inviolate conversations that the government has no right to listen to except where the doctor or lawyer is also breaking the law.

If the government wants to pay for the phone companies to record and store every phone conversation in the US, that's fine with me. Basically, it would only save them the headache of having to physically tap ever phone. The 4th Amendment would keep them away from that data except with a warrant.

flstf · 05-03-2006, 05:52 AM

I guess I am a little paranoid. Even though I have never been accused of a crime and had to defend myself (except for some speeding tickets when I was younger) I don't like the idea of my government requiring communication companies to maintain records of my private affairs and correspondence in the off chance that I may be committing a crime and they may want to get a warrant for them someday.

I guess if the technology was capable of recording every activity and word a person uttered in their lifetime an argument could be made that the government has the right to maintain these lifetime recordings in case they ever wanted to get a warrant for them. Even if they never get a warrant it seems like just recording our activities is a violation of privacy.

I think they should have to get a warrant just to require the ISPs, telcoms, etc.. to begin keeping tabs on us. All other citizens should be considered law abiding and expect their activities to remain private unless there are good legal reasons (a warrant) to monitor them.

The_Jazz · 05-03-2006, 05:59 AM

fistf, I sort of agree with you, but only up to a point. As long as these records are inviolate, I pretty much see it as a convenience factor for the government, especially when they're dealing with criminal conspiracies. But again, if you're committing a crime, you have no right to privacy. As it stands, all other citizens ARE considered law abiding and our activities DO remain private UNTIL there is a warrant (and therefore a good legal reason).

Now if we want to expand this discussion into the alleged warrantless wiretaps being conducted by the NSA, that's where the 4th Amendment gets interesting.

flstf · 05-03-2006, 06:14 AM

I think we just have a little difference in our opinion of what our expectations of privacy should be. I am of the opinion that monitored and recorded activity is not really private even if they never get a warrant to access it.

ubertuber · 05-03-2006, 06:20 AM

Quote:

Originally Posted by The_Jazz

...But again, if you're committing a crime, you have no right to privacy. As it stands, all other citizens ARE considered law abiding and our activities DO remain private UNTIL there is a warrant (and therefore a good legal reason)...

Isn't this the whole crux of this Amendment? If you haven't been convicted, you are presumed innocent. If you are innocent, you have a right to privacy that can (theoretically) only be circumvented through proscribed legal procedures. You shouldn't be subjected to searches and examination of information that you're not submitting to the government.

And you're exactly right - this is where the NSA wiretapping thing gets interesting. From reports I've seen, they were definitely capturing domestic communications, even if by accident.

Quote:

Originally Posted by flstf

I think we just have a little difference in our opinion of what our expectations of privacy should be. I am of the opinion that monitored and recorded activity is not really private even if they never get a warrant to access it.

I think I agree with you flstf, if I understand what you are saying. If the government is requiring providers to record activity in case of the event of a warrent, then the government might as well be recording the information itself.

The_Jazz · 05-03-2006, 06:57 AM

I guess that I see a difference between say, AT&T keeping a log of what I do online (which they're already doing for their own protection anyway) and the government. FedEx and UPS keep a log of every shipment that I send and receive, and the government needs a warrant to access those records. The phone company keeps a record of all my inbound and outbound calls and the government needs a warrant. The toll authority keeps a record of every time my car goes through a checkpoint for billing purposes and the government needs a warrant. Hell, the grocery store AND my credit card company keep a record of what I buy whenever I use my cards at the store. Guess what the government needs to get those record.

There's nothing in the Constitution that says that Americans can't gather information on each other, and that includes corporations. However, if the government wants access to those records, they have to have a warrant. The government already mandates how long certain records are kept - for instance a company that recalls a product has to keep maintain records of how that recall went (and update them as the recall progresses) forever. There isn't much difference now except that the government is the primary (but not sole) beneficiary of permanently maintained records. In theory you should now be able to get your provider to send you a record of the email that your deceased Great Aunt Tilly willing you her haunted mansion if your computer crashes and you lose it. I see no difference.

My understanding of the wiretap scandal has the White House telling the NSA that they don't need to go through the trouble of getting warrants from the special court system set up to grant those warrants even though they are allowed retroactively (i.e. they can listen to my call today and get the warrant tomorrow legally).

dksuddeth · 05-03-2006, 07:22 AM

Quote:

Originally Posted by The_Jazz

I guess that I see a difference between say, AT&T keeping a log of what I do online (which they're already doing for their own protection anyway) and the government. FedEx and UPS keep a log of every shipment that I send and receive, and the government needs a warrant to access those records.

not anymore, all they need is a national security letter.

what 4th amendment now exists?

BigBen · 05-03-2006, 07:47 AM

I agree, the fourth amendment is watered down to the point that would make the founders pretty mad.

Then again, they didn't have the internet, television, electricity, pasteurization, antibiotics, or crack cocaine.

No, I am not justifying the erosion of the fundamental principles of American Law. I am just saying.

I want my government to keep out of my business.

It is a very newsworthy item when a piece of crap uses the 4th amendment to throw out the bloody glove, the knife and the video tape of the murder.

"Oh, you weren't allowed to look there."
"But look what we found!"
"Well, since you weren't allowed to look there, you can't use that against me."
"But you are a nutjob murdering asshole! We have the evidence!"
"Well, you have it, but you can't put me in jail. The founding fathers said so."
"Uh, I think the founding fathers would have hung you from the closest tree."

Is there a middle ground in law? I was told no. But what is ethical? What is the right thing? How would the public be best served? It sure isn't letting very bad people get away with a crime.

But the founders also wanted the government to stay the HELL out of your private business.

What if my private business hurts the public? Shouldn't the government stop it? Only if they know about it, which they can't, if I keep things private.

The_Jazz · 05-03-2006, 07:58 AM

Quote:

Originally Posted by dksuddeth

not anymore, all they need is a national security letter.

what 4th amendment now exists?

Agreed. The Patriot Act strikes me as unconstitutional, but it hasn't been tested yet. Sooner or later something will hit SCOTUS, though, and I have a hard time that the verdict will be something along the lines of 8-1 against since it's so damn blatant.

The_Jazz · 05-03-2006, 08:11 AM

Quote:

Originally Posted by BigBen

I want my government to keep out of my business. ...

But the founders also wanted the government to stay the HELL out of your private business.

What if my private business hurts the public? Shouldn't the government stop it? Only if they know about it, which they can't, if I keep things private.

Again, I agree. However, if your private business hurts the public, one would assume that the injury would be discovered one way or another. Once it's discovered, then that's the time to use the warrant to explore the depths of your depravity. If, for instance, I'm a serial killer murdering only hobos/transients and no one ever discovers the bodies, there's no reason to suspect me of a crime and therefore no need for a warrant. It's my "private" business. However, if someone discovers one of the bodies along with my videotape confession, a warrant is certainly justified to find out what other evidence I've got lying around the house.

Just because you're committing a currently undiscovered crime doesn't give you any constitutionally guaranteed expectation of privacy. If no one ever discovers the crime, that doesn't make you any less of a criminal.

As far as your example of the murderer that gets off, I think that its exactly what the Founders anticipated. If I commit a murder, and you're investigating it, you need a warrant to search my home. That's fine an dandy, but let's posit that I left the bloody glove and videotape in my storage locker down the block. It's a completely separate premises and even an innocent third party. You absolutely have to have a warrant to search that storage locker. I may be guilty as sin, but you, as the government, violated my rights in order to prove it. What other rights are you going to violate to prove my guilt? What if I'm not actually guilty, but you want to send me away so that you can date my wife and you've manufactured evidence? I agree that it's very unfortunate that sometimes the guilty get to go free because of procedural errors, but it's absolutely critical that warrants be issued to keep the government from trampling on all of us. I would rather see a few guilty folks go free than one innocent person go to jail because no one bothered with a warrant.

dksuddeth · 06-15-2006, 09:45 AM

kiss more of the fourth amendment and right to privacy bye bye.

Supreme Court backs 'no knock' entry

Quote:

WASHINGTON — The Supreme Court ruled Thursday that police armed with a warrant can enter homes and seize evidence even if they don't knock, a huge victory for the government and law enforcement agencies.

watch the gun control people scream about dead policemen killed inside homes with guns because of this. How many people will have to die at the hands of cops breaking in the wrong home before someone realized this was the second worst decision over the last year?

dksuddeth · 07-03-2006, 10:04 AM

How important is this part?

and particularly describing the place to be searched, and the persons or things to be seized

05-01-2006, 12:20 AM	#1 (permalink)
dksuddeth Junkie Location: bedford, tx	Fourth Amendment The 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. 50 years ago, this amendment meant something. Since the 90s, it doesn't mean much at all. Sneak and Peek warrants are the order of the day for the FBI, all an agent has to do is state that the warrant is needed for a terrorism investigation. Patriot Act aside, this amendment should be one of the most important for the right to privacy from government intrusion that it entails, but it's not. One has to wonder if it's a right anymore. Take the Cory Maye case. A black man in Mississippi who shot at a man who had just busted down his back door. Cory Maye, in fear of his life and that of his baby daughters, had no idea he had just shot a police officer. A police officer who was serving a 'no knock' warrant for the apartment next to his. Even though the police didn't have a warrant with Corys address on it, nor did they have probable cause to apply for a warrant, he was tried, convicted, and sentenced to death for the murder of that police officer, who just happened to be the son of the Police Chief. While the Fourth Amendment forbids the police from conducting unreasonable searches and seizures, the Supreme Court has found a way to circumvent that guarantee. The FBI suspected Nicodemo Scaro, the sone of incarcerated mob boss 'Little Nicky' Scarfo, of masterminding a loan sharking and gambling operation in New Jersey and raided his office in January 1999. The agents copied the contents of Scarfo's computer hard drive, but were not able to read a single file. Scarfo had installed an encryption program, PGP, which required a user password. The FBI tried, but failed, to crack that password. Having failed to access Scarfo's files using standard law enforcement techniques, the FBI's last hope was to break the law. If the FBI were ablot to obtain Scarfo's password, they could simply type it in and bypass the encryption software. Accordingly, they sought to install a 'key logger' software package on to Scarfo's computer. Agents approached a federal magistrate judge about their failure to obtain Scarfo's password and asked for "authority to search for and seize encryption-key-related pass phrases" and to "install and leave behind [technologies] which will monitor the inputted data entered on [Scarfo's] computer by recording the key related information as they are entered." The U.S. Magistrate concluded that it was now acceptable for the FBI to break the law because "normal investigative procedures to decrypt the codes and keys encessary to decipher the....encrypted computer file have been tried and failed. With complete disregard for Scarfo's privacy, this judge authorized the FBI to break into Scarfo's office as many times as necessary to deploy, maintain, and remove "recovery methods which will capture teh necessary key-related information and encrypted files." Even though Scarfo was suspected of loan sharking, not terrorism, the government cited "national security" concerns and refused to disclose any information about the mechanism to Scarfo's attorneys. The federal district judge was inclined to defer to the FBI's authority. the government, fearing that an appeals court was likely to order the FBI to disclose this 'key logging' technology, which would have shown a clear violation of the Fourth Amendment, arranged a plea bargain with Scarfo. ================================================================= How important is the Fourth and how far does the public interest go in superceding this right? __________________ "no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

05-01-2006, 07:36 AM	#2 (permalink)
The_Jazz Asshole Administrator Location: Chicago	How important is the Fourth Amendment? I'd put it up there with the First as being the most important of all of them. The second part of the question troubles me. I don't think that the right is ever "superceded" except by an unconstitutional act. The government has not only the right but the duty to conduct searches. I don't think any of the families of the victims of the BTK killer would argue that searches were innappropriate ways of bringing him to justice. Nor would the people of Tennessee whose governor sold pardons to convicted murderers in the late 70's. Of the examples you gave, I'm not familiar with the Maye case. From the story posted, it looks like more like another case of a black man being railroaded in Mississippi than a 4th Amendment issue since the warrant wasn't for his home and it was incorrectly served. The warrant played little or no role in the misfortune. The Scarfo case is something that I have been following, although for different reasons completely. I agree that the open-ended warrant is troubling, but it also seems pretty clear that this was a bad guy. Not that good or bad should play any role in whether or not a warrant is issued, but the guy did have prior convictions. The only thing that is a problem here is the permission to enter as many times as necessary portion of the warrant, but the rest of it seems totally reasonable. He was suspected of loan sharking, which is a crime. __________________ "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - B. Franklin "There ought to be limits to freedom." - George W. Bush "We have met the enemy and he is us." - Pogo

05-01-2006, 08:09 AM	#3 (permalink)
dksuddeth Junkie Location: bedford, tx	in regards to the scarfo case, should constitutional rights be held in even more importance when it concerns criminal investigations? he was suspected of loan sharking, and I can only assume that the first warrant to copy the hard drive was legally obtained since there's no detail or evidence otherwise, but do we lessen the strength of rights for suspects? __________________ "no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

05-01-2006, 08:28 AM	#4 (permalink)
The_Jazz Asshole Administrator Location: Chicago	DK, I'm not sure that I understand your question. To me, the whole Scarfo case seems like it only nibbles the edge of the 4th Amendment issues. That is - is it ok to grant a warrant to allow multiple physical entries to capture the password. I would assume that if the judge was going to grant this kind of leeway, he must have severely tightened the rest of the warrant so that, for instance, any cocaine found in the closet would be inadmissable since the computer was in the middle of the office. Can you flesh out your disagreements here so that the sick and sleep-deprived (me) can understand it? __________________ "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - B. Franklin "There ought to be limits to freedom." - George W. Bush "We have met the enemy and he is us." - Pogo

05-01-2006, 08:59 AM	#5 (permalink)
dksuddeth Junkie Location: bedford, tx	well, basically what i'm getting at is do people think it is ok for the government/law enforcement to break the law when standard/legal law enforcement practices don't work? As in Scarfo, by the judge allowing the FBI to break and enter multiple times to monitor the key logging software for passwords. Also, to claim national security for a gambling operation? __________________ "no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

05-01-2006, 09:17 AM	#6 (permalink)
The_Jazz Asshole Administrator Location: Chicago	Sorry for being dense. Now that I reread your first reply, I get it. I don't see where the the government broke the law or the constitution here. The law allows them to enter a premises secretly to place, for instance, a listening device. I don't see how that's any different in the Scarfo case or how it's disallowed by the 4th. Again, I agree that the open-ended nature of the warrant is troubling, and if I had been the judge, I would never have agreed to that kind of warrant. I also don't see a problem with the keystroke log since they apparently had evidence of a crime being committed or documented on that computer. The national security claim for the gambling operation seems a little farfetched, and I purposefully didn't address that in my original rebuttal. Now that the cat's out of the bag - this seems like bullshit and again presupposing that I'm the judge, I would have told the agents that. It's also perfectly reasonable that there's some truth to it and that we're not privy to that information, but I don't find it very likely. __________________ "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - B. Franklin "There ought to be limits to freedom." - George W. Bush "We have met the enemy and he is us." - Pogo

05-01-2006, 11:38 AM	#9 (permalink)
Willravel ... a sort of licensed troubleshooter.	This is what I call the 'stay out of my kitchen' amendment. Unreasonable search and seizures are the staple of a society that chooses the illusion of safety over freedom, and represents a greater insecurity and lack of power in the populace. No government organization should have the authority to search and sieze at their discretion without reasonable evidence. If a police officer wants to come into my house, there had better be a reason.

05-01-2006, 01:00 PM	#11 (permalink)
The_Jazz Asshole Administrator Location: Chicago	See I say "yes" because of exactly the reasons that you've listed. The government thought they had something but couldn't understand what they had without the key/password. Let's put it in another light - what if during the serving of a completely legitimate search warrant for a completely open-and-shut murder case, the murder weapon is discovered on top of a map labeled "other murders" showing where other bodies are buried. Is that map off limits and therefore the other murders? A search warrant is necessary to investigate those other murder sites since they're all private property. I can't imagine that there's some invisible line being crossed here. The courts have held that those engaged in criminal enterprise have no right to privacy and indeed it seems like more of a common sense issue to me than a Constitutional one. If the government has credible evidence that a crime is being committed, then I wholeheartedly support their duty to collect evidence on that crime. The 4th does not define "unreasonable", but I agree that there is a point where a line is crossed between execution of a duty and harrassment. __________________ "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - B. Franklin "There ought to be limits to freedom." - George W. Bush "We have met the enemy and he is us." - Pogo

05-02-2006, 04:58 AM	#13 (permalink)
The_Jazz Asshole Administrator Location: Chicago	OK, let me change my scenario a bit to make it match up with Scarfo a little better. In my murder case example, let's posit that the map found is labeled "murder map" but appears blank. Someone tells the police that it's drawn in invisible ink and you need special glasses to read it, glasses that are stored at a second site. Isn't it reasonable to go to the judge with exactly the same evidence they had to get the first warrant with the addition of the new glasses statement to get a warrant for the glasses? Turning back to Scarfo specifically, you're right that they could not find any evidence on the computer because of the encryption, but they still had whatever evidence allowed them to get the warrant in the first place. The arguement here is not whether or not the original warrant was granted on flimsy evidence (given the eventual outcome, I'd argue that it was not) but the open-ended nature of the second warrant. As far as the specific information gathered by the keystroke counter, I guess it would depend on what was allowed by the warrant, although in practice once they had the password, it would be a moot point. If I were the judge and were somehow convinced to grant this kind of open-ended warrant, I would compensate by tightening down the kind of information the government was allowed to gather, but that's a personal opinion. DK, I'm a little surprised at you on this one - usually your examples are much stronger on Constitutional issues. The Scarfo case might be in a slightly grey area, but you usually offer up clear black and white issues. The Maye case doesn't seem to be a Fourth Amendment issue at all. If anything, it's a 2nd Amendment test since there doesn't seem to be any issue about the warrant itself. Not that I'm not enjoying our little exchange here, but it's just a lot more fun when we both argue from strong positions instead of splitting hairs. __________________ "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - B. Franklin "There ought to be limits to freedom." - George W. Bush "We have met the enemy and he is us." - Pogo

05-02-2006, 06:47 AM	#15 (permalink)
The_Jazz Asshole Administrator Location: Chicago	DK, I finally got a chance to read the Maye link that you posted. Assuming that Wikipedia is accurate (I actually cringed writing that phrase), then I still don't see how this particular case is a big 4th Amendment test. The controversy seems to center around whether or not the police announced before entering, but I didn't see any activity that seemed like a blantant violation of the 4th. There was probable cause at the time (although in retrospect it was wrong), the warrant described what and where was being search and for what purpose. In your very first post, you mentioned that the warrant did not list Maye's address, but Wikipedia says the opposite although it allows that it does not mention Maye specifically. Again, I don't find this unreasonable given the nature of the alleged crime. __________________ "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - B. Franklin "There ought to be limits to freedom." - George W. Bush "We have met the enemy and he is us." - Pogo

05-02-2006, 07:15 AM	#16 (permalink)
flstf Easy Rider Location: Moscow on the Ohio	It looks like it wont be long before ISP's are required to monitor our on-line activity just in case we may be doing something illegal. I'm not sure if the 4th amendment should cover things like this but forcing a communication provider to keep records on you in case you may violate the law someday does not seem right. Isn't this like requiring the phone companies to record all our conversations? Congress may consider mandatory ISP snooping It didn't take long for the idea of forcing Internet providers to retain records of their users' activities to gain traction in the U.S. Congress. --snip-- Colorado Rep. Diana DeGette's proposal says that any Internet service that "enables users to access content" must permanently retain records that would permit police to identify each user. The records could not be discarded until at least one year after the user's account was closed. --snip-- Jim Harper, director of information policy studies at the free-market Cato Institute, said: "This is an unrestricted grant of authority to the FCC to require surveillance." "The FCC would be able to tell Internet service providers to monitor our e-mails, monitor our Web surfing, monitor what we post on blogs or chat rooms, and everything else under the sun," said Harper, a member of the Department of Homeland Security's Data Privacy and Integrity Advisory Committee. "We're seeing a kind of hysteria reminiscent of the McMartin case. The result will be privacy that goes away and doesn't come back when the foolishness is exposed." The McMartin case was probably the most extreme example of the hysteria over "Satanic ritual abuse"--a widespread scare in the 1980s that children were molested, murdered and tortured, even though no evidence was found. In the McMartin preschool case, a family was falsely accused of Satanic activities and the charges were eventually dropped. At the moment, Internet service providers typically discard any log file that's no longer required for business reasons such as network monitoring, fraud prevention or billing disputes. Companies do, however, alter that general rule when contacted by police performing an investigation--a practice called data preservation.

05-02-2006, 08:20 AM	#17 (permalink)
The_Jazz Asshole Administrator Location: Chicago	fistf - I'm not sure what the insult to the the 4th Amendment is if I read the article correctly. It appears to me that the 96 law already requires data preservation for 90 days, and the proposed law would shift that to a permanent record which, theoretically, would be available upon presentation of a warrant. ISP's don't normally share their information without a warrant as it stands, and they've been storing 90 days worth of information for 10 years now. As I read it, the ISP isn't required to hand over all permanent records, but they do have to have it available. __________________ "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - B. Franklin "There ought to be limits to freedom." - George W. Bush "We have met the enemy and he is us." - Pogo

05-02-2006, 08:28 AM	#18 (permalink)
dksuddeth Junkie Location: bedford, tx	What would you consider protected by the fourth amendment then, Jazz? You said it was the most important, right up there with the first, yet you've only questioned one item about the open ended warrant as being a possible violation. Please, let us know what you think is protected by the fourth. __________________ "no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

05-02-2006, 09:12 AM	#20 (permalink)
The_Jazz Asshole Administrator Location: Chicago	There's lots of stuff protected by the Fourth, but it's not overt. The police can't just show up at my house for no reason and go through my stuff without a warrant. The government can't listen to my phone calls as a matter of course without a warrant. They can't arrest me because I look "funny". These are all lack of actions, which is hard to prove. The important thing is that government action against me requires a warrant. If they want to arrest me, search my home or take my stuff, they have to have to present probable cause and swear to it in front of a judge who may or may not choose to believe them or agree that there is enough probable cause to issue the warrant. Both of the cases that we've discussed have involved warrants that may or may not have been issued incorrectly. There haven't been any warrantless searches or seizures. That was my entire point about splitting hairs - we're talking about typos or multiple entries to accomplish one specific task. If the police raided Mr. Mayes' home without a warrant or entered Mr. Scarfo's office a second time but without a warrant, then I would wholeheartedly agree, but I don't really see how the 4th Amendment is really being violated in either case. The 4th specfically requires arrest and search warrants and since they are being issued and served, I don't see where we've been discussing much more than the very edge of the 4th Amendment. __________________ "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - B. Franklin "There ought to be limits to freedom." - George W. Bush "We have met the enemy and he is us." - Pogo

05-02-2006, 11:11 AM	#23 (permalink)
The_Jazz Asshole Administrator Location: Chicago	Ok, I think that I understand it better now that you've given me the statutory language. It appears to me that contents of emails are required to be kept by service providers. However, it also explicitely states that this information can only be accessed by a warrant. It is legal for the government to read your mail - if they have a warrant. It is legal for the government to listen to your phone calls - if they have a warrant. It is legal for the government to listen to the conversations you have with your wife in bed - if they have a warrant. All this law does is make that kind of surveillance accessable to the government so that they can get use a warrant to access it. They still need to show probable cause to a judge. As I mentioned before, criminals have no right to privacy. It's the narrowest implied meaning of the 4th Amendment. Its since been expanded, but I don't think that any sane person would argue that the government doesn't have the right and duty to listen in on your plans to use your Acme Brand slingshot to launch yourself into Yankee Stadium in order to smack that smug look off of Jeter's face. One of the fundamental roles of government is to protect the population - not that Jeter doesn't deserve to be smacked. __________________ "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - B. Franklin "There ought to be limits to freedom." - George W. Bush "We have met the enemy and he is us." - Pogo

05-03-2006, 05:52 AM	#26 (permalink)
flstf Easy Rider Location: Moscow on the Ohio	I guess I am a little paranoid. Even though I have never been accused of a crime and had to defend myself (except for some speeding tickets when I was younger) I don't like the idea of my government requiring communication companies to maintain records of my private affairs and correspondence in the off chance that I may be committing a crime and they may want to get a warrant for them someday. I guess if the technology was capable of recording every activity and word a person uttered in their lifetime an argument could be made that the government has the right to maintain these lifetime recordings in case they ever wanted to get a warrant for them. Even if they never get a warrant it seems like just recording our activities is a violation of privacy. I think they should have to get a warrant just to require the ISPs, telcoms, etc.. to begin keeping tabs on us. All other citizens should be considered law abiding and expect their activities to remain private unless there are good legal reasons (a warrant) to monitor them.

05-03-2006, 05:59 AM	#27 (permalink)
The_Jazz Asshole Administrator Location: Chicago	fistf, I sort of agree with you, but only up to a point. As long as these records are inviolate, I pretty much see it as a convenience factor for the government, especially when they're dealing with criminal conspiracies. But again, if you're committing a crime, you have no right to privacy. As it stands, all other citizens ARE considered law abiding and our activities DO remain private UNTIL there is a warrant (and therefore a good legal reason). Now if we want to expand this discussion into the alleged warrantless wiretaps being conducted by the NSA, that's where the 4th Amendment gets interesting. __________________ "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - B. Franklin "There ought to be limits to freedom." - George W. Bush "We have met the enemy and he is us." - Pogo

05-03-2006, 06:14 AM	#28 (permalink)
flstf Easy Rider Location: Moscow on the Ohio	I think we just have a little difference in our opinion of what our expectations of privacy should be. I am of the opinion that monitored and recorded activity is not really private even if they never get a warrant to access it.

05-03-2006, 06:57 AM	#30 (permalink)
The_Jazz Asshole Administrator Location: Chicago	I guess that I see a difference between say, AT&T keeping a log of what I do online (which they're already doing for their own protection anyway) and the government. FedEx and UPS keep a log of every shipment that I send and receive, and the government needs a warrant to access those records. The phone company keeps a record of all my inbound and outbound calls and the government needs a warrant. The toll authority keeps a record of every time my car goes through a checkpoint for billing purposes and the government needs a warrant. Hell, the grocery store AND my credit card company keep a record of what I buy whenever I use my cards at the store. Guess what the government needs to get those record. There's nothing in the Constitution that says that Americans can't gather information on each other, and that includes corporations. However, if the government wants access to those records, they have to have a warrant. The government already mandates how long certain records are kept - for instance a company that recalls a product has to keep maintain records of how that recall went (and update them as the recall progresses) forever. There isn't much difference now except that the government is the primary (but not sole) beneficiary of permanently maintained records. In theory you should now be able to get your provider to send you a record of the email that your deceased Great Aunt Tilly willing you her haunted mansion if your computer crashes and you lose it. I see no difference. My understanding of the wiretap scandal has the White House telling the NSA that they don't need to go through the trouble of getting warrants from the special court system set up to grant those warrants even though they are allowed retroactively (i.e. they can listen to my call today and get the warrant tomorrow legally). __________________ "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - B. Franklin "There ought to be limits to freedom." - George W. Bush "We have met the enemy and he is us." - Pogo

05-03-2006, 07:47 AM	#32 (permalink)
BigBen Comedian Location: Use the search button	I agree, the fourth amendment is watered down to the point that would make the founders pretty mad. Then again, they didn't have the internet, television, electricity, pasteurization, antibiotics, or crack cocaine. No, I am not justifying the erosion of the fundamental principles of American Law. I am just saying. I want my government to keep out of my business. It is a very newsworthy item when a piece of crap uses the 4th amendment to throw out the bloody glove, the knife and the video tape of the murder. "Oh, you weren't allowed to look there." "But look what we found!" "Well, since you weren't allowed to look there, you can't use that against me." "But you are a nutjob murdering asshole! We have the evidence!" "Well, you have it, but you can't put me in jail. The founding fathers said so." "Uh, I think the founding fathers would have hung you from the closest tree." Is there a middle ground in law? I was told no. But what is ethical? What is the right thing? How would the public be best served? It sure isn't letting very bad people get away with a crime. But the founders also wanted the government to stay the HELL out of your private business. What if my private business hurts the public? Shouldn't the government stop it? Only if they know about it, which they can't, if I keep things private. __________________ 3.141592654 Hey, if you are impressed with my memorizing pi to 10 digits, you should see the size of my penis.

07-03-2006, 10:04 AM	#36 (permalink)
dksuddeth Junkie Location: bedford, tx	How important is this part? and particularly describing the place to be searched, and the persons or things to be seized __________________ "no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."