
Supreme Court Won’t Hear Key Surveillance Case - DiabloD3
https://www.eff.org/deeplinks/2018/01/supreme-court-wont-hear-key-surveillance-case
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wahern
For once I think the EFF is being too pessimistic here. For various reasons
this was a really bad case for exploring the interplay between incidental
collection and the 4th Amendment.

For one thing, it seems unlikely that whatever evidence was used from the
incidental collection was key to his conviction, directly or indirectly.[1]
That may or may not matter. Lack of prejudice doesn't always excuse a 4th
Amendment violation. But it can and often does. It depends on the particular
branch of 4th Amendment caselaw. The court may not have wanted to be forced
into answering thornier questions before they've had a chance to outline the
broader contours, preferably in the context of facts better suited to that
task.

Also, the defense motion seemed to argue that incidental collection was
illegal, period, regardless of context and regardless of how it effected the
evolution of the investigation. Presumably they did so to steer the court to a
place where lack of prejudice would be considered inconsequential. That's
almost certainly wrong. If the court took the case and affirmed, merely
wanting to cabin the effect of the appellate decision, this case doesn't
provide any hooks for attaching clear qualifications. Why invite trouble?

Basically, the guy was screwed one way or another, so the court had no
responsibility to redress individual injustice. And the facts sucked for
developing the law more generally. So why bother?

[1] I didn't read the entire appellate court opinion. Where it does speak of
lack of prejudice it's clearly referring to the the effect of the timeliness
of the government's disclosure, not the effect of the incidentally collected
evidence per se. But at least from a cursory reading I get the sense that the
incidentally collected evidence wasn't a central pillar of the government's
case, neither factually nor legally, regardless of whether it was prejudicial
in the technical sense. Even if SCOTUS wanted to push back (e.g. by saying
that the court unnecessarily opined on the constitutionality of incidental
collection), the risk-weighted cost of flubbing the correction is much greater
than the benefit.

