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Supreme Court Rules Police Need Warrant to Track Your Cellphone (npr.org)
1301 points by gok 10 months ago | hide | past | web | favorite | 265 comments

They didn't go so far as to overrule Smith, the ""pen register" decision, where the court held that dial digits are a "business record" of the telephone company. That 1979 decision mentions the pen register's "limited capabilities" - the device was just not suitable for bulk surveillance. This decision mentions Smith, but the court didn't overrule it.

I own a "pen register". Recently bought it on eBay and restored it. It's a brass clockwork device on a cast-iron base in a wooden box. It prints dashes on a paper tape when connected to a dial phone line. It's extremely simple - one electromagnet and a wind-up mechanism, wound with a huge brass key, to advance the tape. A dial pulse starts the clockwork, a lever pushes the paper tape into an ink roller for each dial pulse, and when the input hasn't changed for four seconds, the clockwork stops. The timing mechanism is similar to Edison's stock ticker from the 1880s. Weighs about 15 pounds. It's a nice looking piece of machinery.

That's what cops had to use for most of the 20th century. Telcos themselves did not log call data except for long distance calls. Electromechanical switches had no large data storage devices. A pen register had to be physically connected to a single phone line, usually in a telephone central office. Someone had to check on it frequently and wind it. No way could those things be used for bulk surveillance. Hence the court's holding as to its "limited capabilities".

The legal system has trouble with scale. Today, every transaction a phone has with the switch is logged to a hard drive for nearly zero cost. Data logged per call has increased by many orders of magnitude since the days of the pen register and the Smith decision. But the court has not seen fit to overrule Smith. Yet.

> "Data logged per call has increased by many orders of magnitude since the days of the pen register and the Smith decision."

Ironic. Today no one on a mobile device making a domestic call pays by the minute. Yet now that the data isn't necessary __for billing__ more and more of it is being logged.

Orwell was close. It's actually Big Data that's watching.

Yeah, a similar ruling established the "RAM Copy Doctrine". The judges ruled that an upstart computer repair company didn't have the right to use the software of their former employer, even though they possessed disks that had previously-legally-obtained copies of the software. This was effected by considering the copy from the hard media into the system memory an infringement.

In context, that case is debatable but not patently ridiculous. However, for the last 30 years, BigCos and their $1000/hr lawyers have cited this "RAM Copy doctrine" that says copies of protected works into system memory are separate acts of infringement to bully anyone whose right to use some digital thing has come into question, claiming that they're owed money for each and every time the item in question has been loaded from disk into memory.

They use this to double-dip on scrapers, too. You may or may not get nicked for CFAA violations and/or issues with the way that you obtain data, but regardless of how you obtain it, they will try to count every time you've loaded the data into memory as a separate act of infringement.

Your conclusion seems right to me. The way that we extrapolate these rulings just doesn't jive with the pace of technological advancement.

If they did not log call data, how did they charge it? Or did they only offer unlimited plans?

They only had to note what zone (local, local long distance, or long distance) or what country you were connecting to and the duration of the call. The number you dialed was not recorded.

So if you called Germany for 33 minutes they could charge you the correct international rate, but without the pen register they would have no idea what number you actually dialed.

By the late 80s they were logging numbers electronically. This applies only before that time.

Local calls have been unlimited on landlines in most US markets for a very long time.

Not so long at all. Into this century in California, at least, your Pacific Bell local calling area was something like 8 miles, and your "free" area was the collection of prefixes for which the nearest point for each prefix was within that distance.

San Jose, for example, had 3 calling regions. Anywhere in Sunnyvale to SJ1 or SJ2 was local, but SJ3 wasn't.

I set up message broadcast systems for groups (such that a 100-second message could be broadcast to a database of contacts, loadable from a CSV file). I wrote a program to parcel out which calls were local from each point. 2 parallel systems, one in Sunnyvale and another in SJ3, could cover from Menlo Park to southern Fremont to Monte Sereno to almost San Martin with no calling charges to over 700 recipients.

I'm not sure how this doesn't qualify as unlimited local calling?

The situation in rural KY on GTE in the early 90s was quite similar -- I even remember using 3-way calling to bridge an aunt who lived a county in one direction with a grandmother a county in the other direction. For us, either was a local call, but for the aunt and grandmother to directly call each other was long distance.

  I'm not sure how this doesn't qualify as unlimited local calling?
It just depends on how one defines "local". Nowadays, people assume your entire country at a minimum. 15 years ago, it was 10 miles or so. It was the mobile era and its inherent independence of landline tariffs that changed things. For three generations, Ma Bell subsidized local calling and infrastructure with long distance charges; the MCI court case and the subsequent breakup of Ma Bell blew that apart.

> Local calls have been unlimited on landlines in most US markets for a very long time.

For some definition of very long.

Verizon's tariffs still offer a landline in New Jersey where you pay by the "message unit". Message units were once tallied by a mechanical counter for each line, and someone read the meters once a month.



The mix of the court on this particular issue is amazing to me. Roberts is turning out to be one of the most balanced judges since Kennedy in terms of hearing a case of merits and not just ideology. Bush did something right bringing on that guy.

Similar to the National Federation of Independent Business v. Sebelius (i.e. Obamacare) split, switching Gorsuch for Scalia.

In terms of interesting splits, South Dakota v. Wayfair Inc. (recently subject to much discussion on HN) had a super interesting split. The majority opinion written by Kennedy and joined by Thomas, Alito, Ginsburg, and Gorsuch. The dissent was written by Roberts and joined by Justices Breyer, Sotomayor and Kagan.

John Roberts: aligned chaotic-neutral.

This statement is wrong. He has always been fair and lawful, to say otherwise shows ignorance of his breadth of work, not only at the Supreme Court, but his entire career. Roberts is an honorable man, regardless of who put him in.

I find it quite questionable that a person who, in 2018, does not believe in the legal equality of gay people should be considered “honorable.”

You're downvoted because your post expresses misunderstanding.

Roberts rightfully expressed no disdain for same-sex partners, nor did he express it should never be legal.

Rather, it should have nothing to do with constitutional law, (nor really even federal law).

Sadly all of our modern civil liberties are fought for on self-serving platforms rather than on a social framework consistent with civil liberties. In other words, people claim to be civil libertarians, but they act in a way which suggests they just care about an expedient pathway to the ones they personally care about.

This is a very naive view of Roberts own record as a conservative activist and politics more generally. No such “social framework” exists separate from a fierce and persistent demand for it. This is certainly how the wealthy maintain their power.

It looks like you've been using HN primarily for ideological battle. That's a violation of the site guidelines and we ban accounts that do it. Ideological battle is incompatible with intellectual curiosity and this site exists for the latter.

If you would please (re-)read https://news.ycombinator.com/newsguidelines.html and use this site as intended from now on, we'd appreciate it.

While this is an important decision, Chief Roberts' time to prove his balance and foresight as a justice was with Citizens United. His court's legacy died with that decision. If it weren't for the archaic archival privacy rules around Justice Sutter's dissent after his retirement we would all be able to read an insider's proclamation of the court's mockery and decline of the institution.

Citizens United has got to be one of the most misunderstood decisions of the Supreme Court.

If Citizens United loses that case, then there would be little standing in the way of, for example, prohibiting the NY Times from running stories critical of presidential candidates within 90 days of the election.

Why? Because the NY Times is a corporation. If the Supreme Court held that corporations don't have standing to claim First Amendment protections, then the NY Times wouldn't be protected either.

That and the whole that it makes corporations into people talking point. One of the historical purposes of corporations is to give them some aspects of individuals. If I'm the CFO of a company and I enter into a contract with you, you don't have to renegotiate it if I leave the company. Because you entered into a contract with the company as a unified entity.

Are companies people? Of course not. But opinions on specific campaign finance laws notwithstanding, they have rights that should look a lot like individual rights in areas like speech because they effectively represent the collective action of that company--however that specific company is organized.

> Citizens United has got to be one of the most misunderstood decisions of the Supreme Court.

> If Citizens United loses that case, then there would be little standing in the way of, for example, prohibiting the NY Times from running stories critical of presidential candidates within 90 days of the election.

They could have decided the case on much narrower grounds. They could have returned it as improvidently granted. The majority wouldn't have had to conclude that "this Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption".

I do think there were interesting 1A claims in play, and I don't know how to handle those well. But the decision as written is just naive.

Those measures may have been appropriate if the case had presented some tangential issue of the first amendment. A corporation invoking free speech to try and worm out of some malfeasance. But Citizens United involves a flagrant attack on core political speech. The speaker was a political advocacy organization, no different than the NRDC or ACLU, and the speech was not money or some abstraction, it was a movie about a candidate running for political office. Punting on that case would’ve been a total abdication if the Supreme Court’s duty to protect free speech rights.

The court had to rule that way to protect the First Amendment. Otherwise you're reasoning that it's "corrupt" to say something nice about someone out loud, just because that person might hear you and decide to be nice to you. Again: recall that The NY Times spends a lot of money to say things out loud every day.

As I said, I don't know the right answer about the 1A claim. I suspect a factually narrower ruling would have entirely been possible.

But they definitely could have ruled exactly the same way without making the insane "do not give rise to corruption or the appearance of corruption" comment.

That's just entirely absurd, and I think it's fairly obvious that it factually is wrong.

Nor did they have to rule the way they did in speechnow vs FEC, which is largely the case that people think about when talking about Citizens United.

Imagine a law that says "you're free to speak, and spend money speaking, but if you mention an elected official, you might get prosecuted for corruption." How is that free speech?

How about reacting to what I actually wrote?

I am. I'm trying to illustrate why that opinion of the court is not actually absurd or insane.

You might not like its implications, but there are other, worse, implications if merely speaking about a subject (e.g. a candidate) can be considered a form of corruption.

If money is speech, then how are any constraints on campaign spending possible? But the Supreme Court has maintained some constraints, so it's a practical judgment call, balancing free speech against the potential for corruption. They didn't have to draw the line where they did in Citizens United.

Of course there can be restrictions on campaign spending (i.e. classical bribery). Free speech has never been a defense to crimes like bribery, fraud, etc., that incidentally involve speech. But the situation in Citizens United came nowhere close to that. It was core political speech. The money wasn't a campaign donation, it was used to create and distribute a political movie about a candidate. If the Supreme Court didn't draw the line there, it would have obliterated the line.

Citizens United was 5-4, yet it was a sweeping decision that obliterated several decades of election law and bent political advertising expenditures to match the accelerating inequality of wealth distribution in the US. The world would not have ended if, as was originally expected, the court had made a more narrow ruling.

There are no constraints on campaign spending. Trump spent like $60 million of his own money on his presidential campaign.

There are limits on how much money any individual may give to a campaign that is not their own, and a prohibition against organizations (corporations, unions, etc) giving money to a campaign.

Why? Because there is a difference between spending your own money to enable your own speech (independent expenditure, the subject of Citizens United), and giving your own money to someone else to spend however they want (direct contribution, whose limits Citizens United did not disturb).

Asserting that independent expenditures don't cause "harm" in terms of corruption or the appearance of corruption is arbitrary. In fact, independent expenditures are quite likely to lead to excessively favorable treatment even in the absence of an explicit quid pro quo.

Limiting campaign contributions is a limit on speech, and limiting independent expenditures is also a limit on speech. Those that insist that one causes harm and the other does not have merely arrogated to themselves the right to define "harm".

It's not arbitrary, it is a logical necessity to protect free speech. Otherwise political speech exists in a murky gray area where it's "free" unless some prosecutor decides that it's actually corruption. There's your dangerous arrogation--which thankfully the Supreme Court preempted.

Naive, or deliberately "business friendly"?

Citizens United amplifies the power of those citizens who form corporations; government officials are now more likely to be responsive to their interests. This is consistent with the principle of "equal opportunity but not equal outcomes", in that any citizen can theoretically form a corporation, so it can be argued as not discriminatory.

In practice it is the wealthy who are benefit from speaking with the voice of a corporation, and the power of non-corporate individual citizens is diminished correspondingly. But again, a consistent theme of conservatism is that freedoms of the wealthy should not be unduly constrained.

> Justice Sutter's dissent

Justice Souter

Hadn't heard about this, though. It is certainly a juicy story. Some people think that Roberts delayed the ruling on the case in order to keep Souter's dissent from being published. Bears more looking into, for sure.

> Roberts is turning out to be one of the most balanced judges

Let's be careful not to define "balanced" as 'toward the center of the current justices' ideological spectrum'.

The spectrum of current justices does not represent a real-world or absolute spectrum. If Ginsberg and Breyer retired tomorrow, Roberts would be on the left, for example.

> not just ideology

Courts should not be applying ideology at all. That's for Congress and the President. Sadly, the SC, especially the right IMHO, is highly and unabashedly ideological these days.

I don’t see how the Supreme Court can adjudicate cases without ideology. The entire point is that they are trying to interpret a 200-year-old document and apply it to modern situations. That generally requires having an operating philosophy of the founder’s intent, or of a more modern interpretation of how the meaning changes with the times.

> an operating philosophy of the founder’s intent, or of a more modern interpretation of how the meaning changes with the times

That's why we use reason(and law), and not ideology.

Asking honestly, how do you interpret the Constitution without some kind of ideology?

As an example - and please don't shoot me - you could consider abortion rights. The Constitution certainly doesn't address this issue directly, or even indirectly. In order to make a determination, you have to formulate an opinion on the matter that turns on the rights of, and harms to, the various parties involved, as well as any moral absolutes that you hold true.

I can't see how there is any objectively correct answer to this issue that hinges entirely on reason and law, and therefore would be patently obvious. And, I would argue, that's true for MOST of the cases that the Supreme Court accepts for review.

Gorsuch dissent is interesting. His position seems to be that the court's decision is not strong enough in its defense against these searches, not that he disagrees that a warrant is needed.

Indeed. It's almost fairer to categorize this as a 5-3-1 decision. Gorsuch tricks you into nodding along with his dissent, which reads very much like a concurrence holding _Katz_ over _Smith_, etc, until bam, there's a dissent.

To my reading, he's saying two things in his conclusion:

* His dissent would be a concurrence if he could have found in Carpenter's favor on propertarian grounds, but Carpenter's lawyers didn't raise any 4A property arguments, so he couldn't

* A finger-wag to future lawyers to please bring him some property arguments so that he can rule the way he wants to.

On the whole though, I honestly think that if he didn't already know that the majority would carry the day with 5 justices, he might have been okay just offering a concurrence.

Yeah, his dissent was a really interesting read. I'd be curious if he would have changed it to a concurrence if there weren't already 5 justices on the other side.

Notable excerpts:

What’s left of the Fourth Amendment? Today we use the Internet to do most everything. Smartphones make it easy to keep a calendar, correspond with friends, make calls, conduct banking, and even watch the game. Countless Internet companies maintain records about us and, increasingly, for* us. Even our most private documents—those that, in other eras, we would have locked safely in a desk drawer or destroyed—now reside on third party servers. Smith and Miller teach that the police can review all of this material, on the theory that no one reasonably expects any of it will be kept private. But no one believes that, if they ever did.*


Judges are supposed to decide cases based on “democratically legitimate sources of law”—like positive law or analogies to items protected by the enacted Constitution—rather than “their own biases or personal policy preferences.” Pettys, Judicial Discretion in Constitutional Cases, 26 J. L. & Pol. 123, 127 (2011). A Fourth Amendment model based on positive legal rights “carves out significant room for legislative participation in the Fourth Amendment context,” too, by asking judges to consult what the people’s representatives have to say about their rights. Baude & Stern, 129 Harv. L. Rev., at 1852. Nor is this approach hobbled by Smith* and Miller, for those cases are just limitations on Katz, addressing only the question whether individuals have a reasonable expectation of privacy in materials they share with third parties. Under this more traditional approach, Fourth Amendment protections for your papers and effects do not automatically disappear just because you share them with third parties.*


Not a fan of Gorsuch, but I'm positively surprised at that comment, as this has been my thinking since the beginning on this issue, too.

I think it's total BS to think that "users don't have an expectation of privacy" when a company offers a service to hold and process their data. I don't think in any other real-world situation that's similar you wouldn't have an expectation of privacy. It's just the government's twisted logic that's used to justify its mass surveillance actions.

I also agree with Gorsuch's point that the standard should be much higher than "an expectation of privacy". If you have an industry that has "educated" its users to expect constant violations of their privacy and misuse of their data, it doesn't mean that now users should no longer benefit from privacy rights, because the companies and governments are so used to abusing users' data that they might as well be allowed to do it. I don't think that sort of logic makes sense.

The press really distorts what the justices are actually like. Read the opinions -- they are a great example of government explaining itself to the people. Real explanations, addressing the potential shortcomings of their own arguments.

Scalia's writings are a great example of this. Never before have I encountered someone with whom I so strongly disagree on so many things, yet enjoy reading the path of how they reached their decision. My own arguments were sharpened because of it. I can see why he and Ginsburg were friends.

Very true, and I’d like to add my appreciation for this thread. I wanted to read this decision but felt I didn’t have time, now I can’t wait to sit down with the document.

> I think it's total BS to think that "users don't have an expectation of privacy" when a company offers a service to hold and process their data

I sometimes wonder if companies put exactly this wording into their privacy policies if it would make a difference legally. Right now they put all kinds of other verbiage which allows law enforcement to argue around it. But what if companies simply wrote into their privacy policy:

By storing your data with us you can reasonably expect that your data will be kept private from access by any other person

Now how can law enforcement argue that someone accessing the service didn't have a reasonable expectation of privacy?

Of course, a company's lawyers might say that this is something they can't actually deliver given the government can demand to access their information. But it's exactly in this way that it's a self-fulfilling prophecy: it is exactly by giving this guarantee to their users that they create the legal argument they need to be able to deliver it. And it is exactly by not giving this guarantee to their users that they deprive themselves of the legal power to achieve it.

> Not a fan of Gorsuch

Why not? Unless I’ve missed something important, his legal interpretation and application so far seem to be fair, balanced, straightforward, and non-partisan.

Not the parent, but I'm not a fan of Gorsuch. I don't suspect he is partisan or politically biased. I just think his jurisprudence is totally kooky.

Originalism never made sense to me. The constitution was written by visionaries who intentionally wrote it as a framework to serve as the foundation of a revolutionary new nation. It is vague by design so as to be forever relevant. I strongly suspect the ratifiers themselves would not be in agreement on a whole host of constitutional cases before the courts. Even just the idea that the text holds some singular, original, unchanging intent, seems bonkers. But not only that, originalists justices claim to have some method of knowing what it is!

Not trying to start a fight, but that's why he's not my favorite. Based on his interesting dissent it seems like he and Sotomayor may be the strongest 4A proponents on the court, so there is hope I may like the direction of many of his decisions. Though I may not like how he arrives there.

Agreed that the constitutional ratifiers wouldn't agree on a lot of modern constitutional cases; and that their original intent (what they were thinking of, specifically) when they wrote it would not fully suffice to provide application in modern cases, since they couldn't have thought of all the situations we're dealing with.

However, it's clear that the ratifiers had particular principles in mind, and that those principles are both discernible with careful textual criticism and applicable to modern cases.

> Even just the idea that the text holds some singular, original, unchanging intent, seems bonkers.

To think the text doesn't hold an unchanging meaning seems bonkers to me. How can the principles expressed in a legal document change over time? Sure, its application will change (or it ought to), but IMO to allow a text's interpretation to change is to (a) allow room for the text's principles to be ignored, (b) erroneously conflate legal interpretation and application, and (c) allow ourselves the freedom to "go with the flow" of modern trends and become unfaithful to the text.

I don't see how one can faithfully uphold the US Constitution (or any legal text, for that matter) without interpreting towards the authors' evident intent, analysing the principles behind it, and applying those principles. The text didn't arise out of a vacuum, and our interpretation doesn't have to either. We have a lot of help in the Federalist Papers, letters the ratifiers wrote, etc. -- all of which provide a helpful, reliable commentary.

In attempting to sever the real author from the text, postmodern literary criticism really dealt a hard blow to truth in textual interpretation. "Open text" legal jurisprudence is only one part of the fallout.

I don't think we're so far off. Of course I wouldn't object that there are certain principles in the constitution, that are relatively constant.

But constitutional cases tend to deal with a lot of specifics. How much bail is "excessive"? How long until a trial has not been "speedy?" When is "due process" satisfied? If we were to ask these and similar questions to Madison, I think his answer would be something like, "the courts should figure that out." I don't think the meaning of these things has changed significantly over time. I suspect they were as broad and vague in the mind of Madison as they are to us.

The courts should rule in a way that is in keeping with constitutional principles, but also that creates good outcomes. The first part of that equation comes from the constitution and the past, yes. But the second part requires that we apply knowledge from the present.

Sounds like we agree quite a bit. Even so, I’m often deeply disappointed in outcomes of constitutional cases (and government behavior in general) because it seems like they’re often “thinking too hard” or failing to courageously apply a simple, straightforward, and apparent reading.

I’m a fan of Gorsuch because he doesn’t seem to do that... Originalism as I see it is the opposite of open text jurisprudence, where the text is viewed through modern values and assumptions and made to bend to them.

So what do you think would be the originalist position on cellphone* tracking without a warrant, and how does this square with the dissents in this case?

* Feel free to replace cellphone with "magical device almost everyone carries that constantly reports their precise location to a register that stores it for up to five years". :)

> The constitution was written by visionaries who intentionally wrote it as a framework to serve as the foundation of a revolutionary new nation. It is vague by design so as to be forever relevant.

This in turn makes no sense to me.

Why would they go through the immense trouble to make this constitution, if they thought it could mean anything people wanted in the future?

How would that be different from the normal state of the time, that had no constitution?

Well, to start I'll just say, despite my flippant phrasing above, I am not so naive to think that originalism is a stupid idea. There are people that have forgotten more about law than anyone here will probably ever know on both sides of this debate, so I think there is obviously something to both sides.

But to your point, it's not that they wanted it to mean anything. It's just that the constitution is broad and vague, not because we lack historical context or some window into the mind of Madison, but because it is intentionally vague. Let's take the relevant amendment here:

> 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...

That phrase "probable cause." Not very specific to my mind. It can't mean anything at all, but it leaves most questions unanswered. Is an anonymous phone tip probable cause? If an officer pulls over a car and the driver is sweating and nervous, is it probable cause to get a warrant to search his house for drugs? What if the driver smells like drugs? What if he is carrying lots of cash? What if there is blood on his shirt? And on and on...

Without the hundred plus years of case law that have worked to develop tests for what qualifies and doesn't qualify as probable cause, it really might mean almost anything. What good does it do to ask, "What would James Madison have thought about a driver that smells like drugs?" He probably would have thought it was an interesting legal question for the courts, that's what! Judges should figure that out by trying to predict the real world outcomes of their decisions, not reading tea leaves in the Federalist papers.

But yea, just like my, opinion, man.

OK, I can see that that is a place where the interpretation is intentionally left up to future courts and precedent.

Since you can't foresee every possible future circumstance, you try to establish a general principle to apply instead.

But I don't think that means all parts of it was intended to be freely reinterpreted to mean anything the people in power in the future wanted. I think the main purpose of the constitution was to prevent that!

If the law is what five lawyers say it is, why have a written constitution at all?

The constitution provides an amendment process. If it is irrelevant or outdated, it should be amended and not changed by usurpation or fiat.

Have you read The Federalist Papers? I used to be skeptical of Originalism but those documents changed a lot of how I think about the law and make it pretty clear that the Founders did not intend for the Constitution to be "just a framework" to be casually interpreted. They understood the dangers of Democracy, and were pretty explicit about it.

He got a pretty good smearing done on his character by the media during his confirmation hearings. That, plus the fact that his name will always be associated with Trump, is probably enough for most people.

The irony there is that there's probably no person on the court more predisposed to ruling against Trump than Gorsuch is.

Of course, everyone will likely feel justified in hating him when the Trump v Hawaii decision is released, unless it's 8-1 or something in favor of Trump.

I mean, he's also sitting on a stolen seat. Not letting Obama nominate anyone was pretty BS. Obviously it wasn't his idea, but he's benefited from it nonetheless.

Frankly, I totally understand the reasoning of not wanting a lame-duck president to nominate a Supreme Court Justice months before a presidential election. The people appointed to that position is a huge consideration in many people's vote. Ones less justice on the court for a handful of months is not a big deal. Let the people decide, or something (and inb4 Trump lost the popular vote).

And it was a gamble, as most of the Republican leadership in congress fully expected Trump to lose, in which case Hillary might have nominated someone considered even more liberal than Merrick Garland.

If that had happened, and that person confirmed, would they be sitting on a stolen seat too?

There was a legitimate method that the Republicans in the Senate could have used to keep any Obama nominee from replacing Scalia. They could have done their Constitutional duty and held a hearing followed by a vote, and then voted "no".

The method they chose instead was illegitimate, and that's why it is a stolen seat.

> Frankly, I totally understand the reasoning of not wanting a lame-duck president to nominate a Supreme Court Justice

That's understandable.

> months before a presidential election

I don't think you understand the definition of "lame duck". It refers to the period between election and inauguration. It is completely unreasonable to treat the entire final year that way.

No, the GOP was planning to block Hillary's nominees as well.

And people did decide... In 2012 when they voted for Obama by like 51%. Lame duck presidents have gotten SCOTUS seats before. Reagan nominated and had a confirmation in his final year by a supermajority.

Of course they were, just as the Democrats attempted to block Gorsuch. Difference is there would be no reasonable excuse to not even letting it come to a vote at that point.

Regan's last nomination was an interesting one. With his first nomination for the seat coming nearly a year and a half before the next election. Then going through another potential nominee, with Kennedy not being confirmed until early 1988.

Regardless, all I'm saying is I understand the reasoning for not wanting to let Obama appoint a SCOTUS justice in his last months. They could have gone the other way and let it come to a vote. Republicans would certainly have had the numbers to block it (and the yays needed 60 then). And then Obama would have appointed someone else, and so on until the election was decided and the next president in office.

Though I have no doubt the Republican leadership would have acted differently if a seat was open during the last days of a Republican administration.

Either way, Gorush's seat is no more stolen than a Hillary appointee would be.

>Difference is there would be no reasonable excuse to not even letting it come to a vote at that point.

There was no reasonable excuse in 2016 either lmao.

It may well be that an arms race of partisanship is the norm we should expect going forwards. Careful what you wish for.

I'm curious- what makes him predisposed to ruling against Trump?

The TLDR answer is that he doesn't believe that the constitution gives the federal government as much authority as they exercise.

I'm mobile, so I'll try to make this brief, but in _Sessions_, for example, he expressed concerns on how vague or poorly written laws afford the government too much power. In _Gutierrez_, he (unusually) wrote the majority opinion, and then also a concurring opinion that I assume he couldn't get other justices to sign on to, which effectively bashed Chevron deference.

_Chevron_ was a case largely believed to have set the stage for much of what people see as abuses of federal authority holding (basically) that an ambiguously crafted statute that does not expressly give a government agency over an authority over an area, but which could maybe sort of be interpreted that way, then you should find in favor of the government, because they're the experts.

Gorsuch believes that giving the government powers that Congress did not expressly intend is an abdication of judicial duty, and that we shouldn't interpret ambiguity as a blank check. He thinks that if Congress intends to give <agency x> authority over a specific domain, then they should say that explicitly.

TLDR, the deference that Chevron establishes as precedent in government cases most largely benefits agencies operating under the executive branch. Trump runs the executive branch, so that cuts in his favor. Gorsuch believes (more than the other justices) that they do not deserve that deference, and that laws should be interpreted to mean what they say.

Unless we're using some standard of 'nonpartisan' I'm not familiar with, I have no idea how you get that. His decisions so far are typical of the ideological firebrand-wing of the FedSoc types, and he hit the ground throwing elbows. (Seems to have learned some manners in the meantime, but that was inevitable.)

There's a stronger case that Thomas is non-partisan than Gorush, Occupant of the Stolen Seat.

There is a big difference between partisan and ideological. In fact, I've come to see them almost as opposites over the last couple years: people who are ideologically Republican-circa-2015 have largely found themselves without a party in 2018, while most people who were Republican partisans in 2015 remain staunchly so today, just with a different ideology. In this way, it seems easier to be partisan if you aren't very ideological. (I believe there are also people who are neither.)

I would agree that Justice Gorsuch is ideological, but he does not seem particularly partisan.

I voted for trump. I voted for him specifically because he published a list of justices that I was more or less OK with, and chose to hold my nose over a lot of other stuff - I think he's kind of a sleaze (in the locker room sense) - but the Supreme Court is so much more important than the presidency.

I am happy about Gorsuch. I am appalled that Trump has continued Obama's use of executive orders to get his way (I was equally appalled when Obama did it). I'm disgusted by the continued irresponsible deficit spending. I'm pleased by the burning pile of regulations that have been axed from the federal register. I'm annoyed by the tariffs, but I will tolerate them -- the aerospace company I work for recently transferred nearly $1Bn in IP to a Chinese JV as a precondition to gain access to the Chinese market. Trump is actually correct about that problem. The border separations were reprehensible, but 'catch and release' encouraged human trafficking of children (a child, any child, was a ticket into the USA) and was an equally bad plan. Would I say that I don't have a party? Well, I do -- the Libertarian party -- but I don't think they'll ever win so I usually vote Republican.

I guess my point is, nobody will ever be completely happy with any president or any political party, and even people with ideologies tend to be pragmatic when it comes time to vote. I think that includes supreme court justices, when they must vote on the outcome of a case.

Sure yeah, I understand your vote, and your slightly positive leaning ambivalence. But in a couple cycles or so when the ideology of the elected officials more closely matches the current ideology of the party's voters, you will find your views unrepresented by either party. Put another way: if (in my opinion, when) President Trump starts chafing at the Federalist Society's dictates on judges and begins nominating authoritarians, it will not be so much as a blip in his support amongst the current Republican voting coalition. That's no longer part of the ideology, it's a transitionary hold-over from the previous ideology.

That makes me wonder why he didn't sign on and write a concurring opinion then.

Normally, that would be an opinion "concurring in the judgement" but not in all of the reasoning.


1. He disagrees with literally all of the reasoning. He doesn't want to affirm the judgement because he thinks it's just plain wrong.

2. It's not clear he would agree with the outcome on this record either. He basically says the record isn't well enough developed on any of his points to figure out what should happen, and that the arguments he would make were forfeited.

That suggests he may actually be in the camp of "i think all of the reasoning here is nonsense and wrong, and you forfeited all other arguments, so you lose".

As a result he's dissented and literally written down "for the love of god, the next time someone appeals a case like this, please make the following arguments"

I'm no laywer, let alone qualified to interpret the SCOTUS, but from what I can tell he disagrees with the whole approach taken, which relies on the "expectation of privacy" test defined in the Katz case, whereas he believes that the court should go back to the Fourth Amendment text itself and review the data (such as the phone's location) under it. Specifically, he seems to be saying that just because the data is currently held by a third-party, that doesn't mean it's not the person's "papers" and as such fully defended from unreasonable searches.

I like that tact for user data, and have mentioned it in the past that our justice system doesn't recognize the modern digital nature of a persons "papers". There really should be a systematic extension of such an interpretation.

I think you mean tack—“a method of dealing with a situation or problem; a course of action or policy.”

yes I did, thank you

This along with Thomas's dissent shows how important it is that we need a bill of rights for the digital age. Especially by Thomas's dissent, we otherwise cant have an expectation of privacy because or "papers" are always stored or transmitted across someone else's property.

That's true, but it fails to mention that there is a very specific partisan reason republican justices won't get behind a privacy finding. Gorsuch isn't standing for abstract principle here, he's refusing to stand on the same ground the found for Roe.

Roe standing on expectation of privacy seems to be a similarly poor analogy.

The real missing piece goes back to the same fear the framers had when enacting the Bill of Rights in the first place — namely that by enumerating some rights it would inadvertantly serve to exclude those unenumerated but equally inalienable rights, such as right to self-determination and ownership of one’s own body.

With respect to Roe v Wade, the expectation of privacy has already been established with your doctor. Since there are legitimate, non-trivial reasons for abortion, and that's a decision between a person and their doctor, the gov't can't ask why someone may need that abortion. Therefore, the gov't is unable to discern between reasons for an abortion, and therefore can't restrict them (up to a reasonable point, which was set non-arbitrarily around 24 weeks). You have a right to patient confidentiality. The gov't has no more of a say in whether you should have appendix surgery than whether you should have an abortion.

However, this doesn't establish a right to abortion. The justices clearly state that it is not a right by saying it's not covered under the 9th.

Thank you for that. Not to get too off topic, but I will need to read more about the reasoning behind the RvW decision.

It sounds to be threading one hell of a needle as a justification to keep government out of elective abortion. I mean, we have databases which track every narcotic prescription written which law enforcement (including the DEA) can access without a warrant.

It's really not a fine line. Narcotic dissemination is a major problem and there are justifiable reasons for tracking them, but I don't believe that tracking forces an individual to justify a decision between their doctor and themselves to the gov't. The justices did say there could be justifiable reasons limitations on abortions as well, just that it is very difficult to enumerate because politicians are not doctors.

> I don't believe that tracking forces an individual to justify a decision between their doctor and themselves to the gov't.

That appears to be exactly what it’s doing though!

Practically, while you can share your prescription medications with another person, abortions are not transferable.

The registry is not supposed to about who has a prescription, but rather, who has more than their legitimate share of prescriptions. It’s also supposed to be used to identify over-prescribing doctors.

> ownership of one’s own body.

Given that the framers were living in a society where that right was distinctly "alienable", and either were themselves or needed to appease interests that insisted that said right be alienable, I'm not sure they considered that one.

That's one possible explanation.

A more charitable, and frankly, reasonable explanation would be that Gorsuch places high priority on limiting government power through to take private property and thinks of many problems through that lens. That's a view he expressed at oral argument in this case[0], in other privacy-related cases [1][2], and in cases in other contexts[3][4].

Virtually all non-unanimous supreme court decisions are ultimately trade-offs between conflicting rights and values. Congress's power to regulate drugs vs a citizen's right to use drugs in religious ceremonies (Smith). The documentary-maker's right to free speech vs the population's right to ensure free and fair elections by limiting corporate spending on elections (Citizens United). A citizen's right not to be searched for incriminating evidence without a warrant vs. a police officer's need to prevent destruction of evidence and ensure their own safety (Robinson).

Different justices place different weight on different rights. Kennedy is a famously protective of free speech, so whenever Free Speech is implicated, he tends to side on the defense of it. Alito places a lot of value in ensuring police have workable rules that can be applied in the field. Those priorities determine where they land on tough issues and how they think issues should be resolved.

I think there's a lot of evidence to suggest Gorsuch cares about protecting property rights and that idea is entirely consistent with his reasoning here (without his harboring a secret anti-Roe agenda).

[0]https://www.oyez.org/cases/2017/16-402 [1] http://www.scotusblog.com/2018/01/argument-analysis-rental-c... [2] https://www.ca10.uscourts.gov/opinions/13/13-7082.pdf [3] https://www.supremecourt.gov/opinions/17pdf/16-712_87ad.pdf [4] https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...

Agreed, and in a hypothetical universe where Gorsuch wrote the majority opinion and 4 justices signed on to his take, we would have even better protections against _Smith_ type privacy infringements than what this current decision might offer.

There's still a lot of gray area though -- it's easy to say that the money in my bank is my property, even where it is in the care and custody of a third party, so by that argument, Gorsuch's property argument gives me more privacy protections for non-warranted searches to my banking data, but on the other hand, it's not clear that my Google Map data is 'mine', since Google provides it as a service to me for free, and uses that data for other purposes.

>It's easy to say that the money in my bank is my property, even where it is in the care and custody of a third party, so by that argument, Gorsuch's property argument gives me more privacy protections for non-warranted searches to my banking data

I didn't understand him to be quite saying that. I understood him to be saying, "information about oneself is property. The government may not take your property without cause even someone else is holding it for you. Ergo, they cannot take the information here."

As you note--there's a debate that would need to be had whether this is your information that you've given them, or their information that they've created about you and the analogy breaks down a bit for me where that isn't perfectly clear.

Roberts seemed during oral arguments like he might have been trying on the information-is-property argument, "This [data] is not simply created by the company, though. It's a joint venture with the individual carrying the phone. That person helps the company create the record by being there and sending out the pings or whatever." That he writes against it here suggests he either didn't like where it led, or possibly couldn't get a majority to sign on to an approach that would uproot Katz when neither party was asking for it.

> it's not clear that my Google Map data is 'mine'

Yep, definitately not clear. But that's why it's a good for courts to start thinking about such things so that principles can emerge out of real-world cases.

My guess is that data-ownership is mostly bunk ("information wants to be free"). But privacy advocates who think in those terms are on to something and "ownership" is just the nearest model we can think of. Over time we can evolve a clearer idea of of what that something is.

How does his opinion undermine Roe, specifically?


It's very sad to see people skewer Gorsuch in this decision - and in general. His opinions are consistently interesting and well-reasoned, and this is no exception.

His views on data ownership seem to roughly align with Europe (it's still "your data" even if other companies hold it), which might be his one bright spot for liberals on this forum.

Data ownership is a tricky topic that humans will need decades of experience to figure out. In the mean-time, evolving the juripsrudence one precedent at a time is a lot saner than big-bang changes.

Nobody is doing big-bang changes, though; some are slowing evolving jurisprudence, others are slowly evolving legislation.

Yeah. It's still early for him, but describing Gorsuch as a socially conservative, civil libertarian might be accurate.

I would interpret social conservative as anti choice for abortion, anti non man-woman marriage, anti marijuana, etc. How is this also considered civil libertarian?

I'd just like to raise a point that isn't discussed enough:

Requiring a warrant is an extremely low bar to pass. Yet somehow law enforcement has been moving away from even that cursory glance since 9/11. We keep seeing these arguments about how burdensome warrants are, but judges routinely rubber stamp every warrant request that comes across their desk.

The reality is that this has nothing to do with "warrant Vs. no-warrant" that's just the headline, when crimes are suspected warrants are trivial to get. The fight really being had here is "warrant Vs. routine monitoring."

That's what law enforcement want from this: If you know someone that knows someone that might have committed a crime, they want to invade your privacy "just in case." As I said, if you were directly tied to it a warrant is easy, they want to expand the scope of monitoring.

Warrant means an audit trail and coordination with a prosecutor and the judiciary.

That's a good thing, as it creates a virtuous cycle. There is accountability and more transparency, vs an internal process where the whims of an official, or a failure to have adequate controls inevitably leads to problems.

The case that went to trial here had coordination with a prosecutor and the judiciary - they got a court order under the federal Stored Communications Act. So I don't really think this will have any of the effects you expect.

I'm completely on board with this ruling; the 3rd party doctrine is complete garbage in the digital age, but I think it will have a much narrower effect.

I also don't think this ruling will have any effect on mass surveillance that is justified on a completely different legal basis.

"Warrant means an audit trail and coordination with a prosecutor and the judiciary. ... There is accountability and more transparency"

Who's actually auditing these people and holding them accountable?

When was the last time someone lost their job because they issued too many warrants, or were too lax in issuing them?

Is a warrant more than just a rubber stamp?

"Supreme Court asks surveillance state to wear a fig leaf" might be a more accurate title.

It is my opinion that just having to ask a judge for a warrant makes law enforcement officers do a lot more work than if they could just invade someone's privacy as a matter of due course. I don't think I've heard of any judges getting fired for issuing too many warrants, but judges occupy a special place in our society: they are people learned enough in the law of the land that we invest in them the power to adjudicate disputes. The assumption is that the judges hold themselves to a higher standard.

> Warrant means an audit trail and coordination with a prosecutor and the judiciary.

But depending on the workload of these people, this can also mean a whole lot of back-log and result in hasty decision making.

Germany has a similar trend where judges are supposed to issue warrants for pretty much everything, like searching your house.

The problem in actual practice with this is that German judges are already overloaded with all kinds of work, which means they have on average around 3 minutes to process a search-warrant request, that time also includes writing the explanation for why it was denied if it should be denied.

3 minutes isn't a lot of time and getting it wrong can have pretty hefty consequences for the wrongly accused because these days it's often routine to confiscate all the IT hardware and any data media they find.

If you are somebody who's self-employed and working in IT, such a search could literally be the end of your business, because it will be years (and many lawyer fees) before you get your stuff back, even if it turns out you never did anything wrong.

Maybe I'm failing to see your point, but wouldn't removing the requirement for a judge to look at it, no matter how hastily that decision is made, further reduce the barrier to a false search? Or are you saying it pressures the judges into making hastier decisions in larger cases that would not fall under this decision because of the volume of smaller cases?

I'm trying to say that checks&balances are great, at least as long as there's no bottleneck in the whole process because that usually leads to overspill of some kind. For example, judges feeling pressured into rubberstamping due to the heavy workload.

I don't really see any real solution to this that doesn't involve either law enforcement toning down the number of requests for warrants or jurisdiction needing to expand its capacities, to allow judges more care in checking individual warrant requests.

Could you expand on the "virtuous cycle" theory? I was thinking that the coordination between law enforcement, prosecution, and the judiciary creates not virtue but mutual trust, which is much worse.

Administrative action happening within the context of any executive branch administrative unit that impacts civil liberties is always fraught with risk.

It is a vicious cycle as the public has no way to actually find out about bad actions or negligent actions. Public officers in a bureaucracy have broad discretion to implement or ignore controls and are minimally accountable.

In the actual justice system, law enforcement, prosecution and judiciary all have different interests and all have formal process for interaction. For the most part, we know how many warrants are issued, because of court filings. In most cases, state/local prosecutors are elected officials directly subject to the consent of the people. In many cases judges are as well.

That's not to say that the justice system is wonderful and perfect. There's a balance between your privacy and the public interest to prevent crime. We also have things like civil forfeiture that are problematic. But for the most part, we don't have the police feeling empowered to randomly search our cars or homes, because of the legal protections re: search and seizure and the warrant process. That was happening with cellular phones, and this judgement will help eliminate the practice.

> The fight really being had here is "warrant Vs. routine monitoring."

Exactly right.

> That's what law enforcement want from this: If you know someone that knows someone that might have committed a crime, they want to invade your privacy "just in case."

It's worse. While they will say that's what they want (and they do want that), what they really want is to look at anyone at any time for any reason. Say, if you tweet something disparaging about police they'd love to be able to look at your info without asking anyone, to see if they can find something on you.

I agree, but I really think it's about mass surveillance, which is impossible if you need to get a warrant for each person. If you don't need to get a warrant, then you can just hoover up big-data amounts of information and do whatever the heck you want.

> We keep seeing these arguments about how burdensome warrants are, but judges routinely rubber stamp every warrant request that comes across their desk.

Warrant applications getting denied may be rare in most jurisdictions, but that doesn't mean they are rubber stamped: what probable cause requires in common circumstances being well established by precedent and practice, there is little incentive for law enforcement to waste their own, and judges‘, time on a invalid applications.

You pasted a quote from another thread.

Fixed, thanks.

It's a low bar for surveilling individuals, but it doesn't scale. I think that's really important. The more obstacles in the way of mass surveillance, the better.

It is spreading throughout the empire : in NL, I was stopped on the street by the police and asked for my ID while there was no suspicion of any crime. This is illegal in NL.

I refused, was taken in, given a 'Strafbeschikking' which would have given me a criminal record without going through a court.

I knew the law, knew what I was doing, appealed and won.

But they are constantly stretching boundaries ( ID, ANPR, cell data, internet monitoring and on and on and on ).


That depends on your point of view. If you're an authoritarian who sees dragnet surveillance as a desirable project, then requiring a warrant for each and every person you track is an insurmountable barrier.

>Requiring a warrant is an extremely low bar to pass. Yet somehow law enforcement has been moving away from even that cursory glance since 9/11.

Because without a warrant requirement they can request vast troves of data, to be stored indefinitely.

Also, even if 90% of the requested warrants are rubber-stamped, you still get two very beneficial things as a citizen:

1) law enforcement at least does the minimum necessary to be compliant with that warrant and the constitution

2) without the warrant required, there may be (and there is) an additional 10,000% of citizen tracking.

When a warrant is not required, law enforcement can target orders of magnitude more citizens than just "crime suspects" that need to be presented before a court in a warrant.

Yup; what they want to be able to do is track and store all data, so they can retroactively go look for evidence. Something to be said about that of course, but, it's in violation of privacy and not far removed from science fiction like 1984 and Minority Report.

Consider that because judges take seriously their duty to reject insufficient warrant requests, law enforcement typically only makes strong requests. The government is a repeat player and has every reason to build trust with judges.

Also consider that the internal policies of the DOJ are often more restrictive than the restrictions applied by the courts. The government has good reason to avoid testing the boundaries of the law, lest they generate unfavorable precedents that tie their hands down the line.

Consider the converse of what you said: Because law enforcement typically only makes strong requests, judges take seriously their duty to reject insufficient warrant requests.

I hope that illustrates the folly of both statements.

The government has nothing to lose by testing the boundaries of the law, because there are so many undefined and underdefined boundaries. An unfavorable precedent every now and then is a very small price to pay, particularly when playing fast and loose with the rules lets them bring so many more cases. It's like saying one daily speeding ticket resulting in a warning will stop people from speeding on a busy urban interstate.

This is not something you can reason about from first principles. The parent is talking about how the DoJ actually operates, not a theoretical construct.

That said, most warrants to collect evidence are not issued to the DoJ, they are issued to state and local prosecutors, who are often more aggressive than DoJ is (in part because so many AGs are elected, IMO).

I believe one additional reason law enforcement don't want to get warrant is because they don't want to leave any paper trail when they track someone as that would expose the terrifying volume of phone they track.

>law enforcement has been moving away from even that cursory glance since 9/11

It was moving in that direction long before 9/11. It just gained mass notice when everyone started taking off their shoes at the airport.

very good point, thanks.

Getting a warrant is "easy" (far too easy) -- unless you want to get one on every person in your jurisdiction, forever.

> Requiring a warrant is an extremely low bar to pass. Yet somehow law enforcement has been moving away from even that cursory glance since 9/11.

I agree, it is unfortunate that for almost two decades fear has overridden rights and warrants even though they are easy to obtain and explicitly stated in the 4th. Warrants provide visibility by at least another party and make mass surveillance more difficult. Maybe warrant records need to be public after x amount of years as well to help monitor surveillance abuses.

Warrants need to extend to all your digital data not only as a protection against unneeded surveillance but to protect business ideas, data and more which corrupt watchers may be intercepting without this oversight of a warrant. Decades in the future if this mass surveillance continues it will be compromised by corporate espionage, compromised people/assets by foreign powers and much worse.

We essentially need an amendment that affirms digital data as part of your "persons, houses, papers, and effects". It could be argued that digital data are your "papers" and "effects".

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.

However, my guess is law enforcement using surveillance has become the normal procedure since 9/11 two decades later and recent technological advances (i.e. triangulation, NSLs, metadata, association, IMSI catchers, stingrays, etc) rather than warrants and detective work, the latter which is truly the desirable configuration of justice per the Constitution.

Currently it is way too easy for enforcement to monitor people without a warrant. Noone even knows who owns what stingrays and IMSI catchers even in D.C.[1] I wonder if enforcement even knows how to do actual detective and warrant based work after two decades of abuses. Foreign assets definitely are abusing these systems as well as corporate espionage, blackmail/kompromat collection and more.

> An undisclosed number of surveillance devices known as “Stingrays”—used to track and intercept smartphone communications by posing as legitimate cell towers—are suspected to be in operation across Washington D.C., leading to fears foreign governments are using them to snoop on the capitol. [1]

Too much surveillance and too much data collection without warrants becomes a security hole and a bigger issue than just doing detective/warrant work on actual targets instead of everyone.

I am very happy SCOTUS isn't fully compromised as of yet and this is a victory in privacy but only a step. Privacy invasions based on fear will end badly if it isn't curtailed, not just for individuals but for businesses and nations from corrupt people and foreign assets that use those systems against us.

[1] http://www.newsweek.com/who-tracking-dc-cell-phones-homeland...

"but judges routinely rubber stamp every warrant request that comes across their desk."

Provide numbers or data or real insight on this. You simply saying it does not make it true or factual.


99.97% warrants were approved by FISC between 1979 and 2012.

FISC courts are for foreign surveillance targets where there's a national security interest. It doesn't remotely apply to this case, where the crime was a string of department store robberies. FISA warrants are a completely different beast. I don't like them either, but they have no bearing on this particular case. Though, I should add that, from the details of the case, it seems like they had more than enough probable cause to get a warrant.

People outside of the US don't require a warrant at all. FISC warrants are for people physically located within the US and its territories or who have data or property stored within the US.

> It doesn't remotely apply to this case

You have to read comments within the context they were given. This is a broader discussion about warrants, and the specific comment I was replying to asked for data on claims of "rubber stamping" of warrants.

I don't know of any systematic studies, but the balance of available evidence is that warrant approval rates are very high:



For those who have not read a supreme court opinion before, I recommend it. They are written in plain english and understandable by laypersons, and usually very well written.

Gorsuch's dissent is straightforward english and lays out his thoughts and what he thinks is also a possible way forward. I only skimmed through the prior dissents and decision though.

Although my initial reaction was to strongly agree with the decision, I find the dissents much more interesting and Gorsuch's analysis compelling.

This case may have made a mess of things. Maybe the right answer here is for Congress to clarify what the digital equivalent of a safe deposit box is.

While I am happy about this ruling, I feel like it does not go far enough at protecting our privacy. Call me cynical if you want, but there are two things that are causes for concern for me.

1. The article says “Roberts noted that the decision also allows for warrantless cell-tower location information searches in emergencies and for national security purposes.”

This leaves the door open for any agency to claim that any historic GPS data was obtained for “national security purposes”.

This is troublesome because if the government is abusing their power there is no way to hold them accountable since they do not have to explain the specific reasons for accessing the data if doing so will “compromise national security”. It is a bit of a loophole in my opinion.

2. Another article (https://www.cnet.com/news/supreme-court-says-warrant-necessa...) mentioned “While the decision sets a ruling for historical GPS data, the Supreme Court said it does not apply to security cameras, business records or real-time location tracking.”

This means that any other data can still be obtained without a warrant under the CLOUD act which passed just a couple months ago.


> 1. The article says “Roberts noted that the decision also allows for warrantless cell-tower location information searches in emergencies and for national security purposes.”

FWIW, that's not how I read Robert's opinion. He said that this decision didn't decide those (at least partially because it wasn't the question presented).

> This means that any other data can still be obtained without a warrant under the CLOUD act which passed just a couple months ago.

Isn't the stored communications act much more meaningful than CLOUD here?

This NPR article was incredibly light on details. Here's the full record: https://www.supremecourt.gov/opinions/17pdf/16-402_h315.pdf

In the majority opinion, even though it specifically notes its decision is narrow to this case, the requirement of a warrant is based on a more general test.

1) Does the individual have a reasonable and historically legal expectation of privacy over the information in question? (In this case, detailed location data and yes)

2) If the information is stored with a third party, does the user "affirmatively" turn over that information, or is it collected with or without their knowledge? (In this case, cell location data is the latter)

3) Is the data "detailed, encyclopedic, and effortlessly compiled" (this from Jones)?

4) Cell phones are "'such a pervasive and insistent part of daily life' that carrying one is indispensable to participation in modern society".

This seems like a pretty positive expansion of digital privacy rights re: government searches. Specifically, cementing the Jones decision about pervasiveness and ease-of-dragnetting being a factor is good law.

As the reasoning is fairly clear and straightforward, one would hope the court would follow for similar devices (e.g. car GPS data or voice assistants).

As always, the coverage from SCOTUSblog is vastly better. They only have a 4-paragraph post on the decision, but it is much more info-dense than anything else:


Further write-ups by them will come out as people have time to read the decision. You can also look at the 15 previous SCOTUSblog posts about this case before the decision was released which dissect the relevant issues:


The key line:

> We decline to extend Smith and Miller to cover these novel circumstances. Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user's claim to Fourth Amendment protection.

The unique nature being:

> when the Government tracks the location of a cell phone it achieves near perfect surveillance

Also see this great thread that looks at the decision: https://twitter.com/elizabeth_joh/status/1010166193473417216

The full record is a 120-page decision, including 4 separate dissenting opinions, that came out less than an hour ago.

Do you really expect a full digestion of the opinion in that time frame?

I'd expect a bit more from a news company that makes the claims on journalistic prowess NPR does, like a brief summary on what grounds the judges wrote their dissents.

Took me all of 5 minutes to ctrl+f through the doc and find each record.

To save you some time, the issue seemed to be that the individual does not create, maintain, or store the records in question, so the 4th amendment does not apply in this instance.

As a reformed law student, I can say that I've seen a lot of smart people try to answer questions about long legal opinions after a few minutes of ctrl+f-ing through a case. 90% of the time it worked well enough for them to stumble through a question. The other ten percent, they ended up making silly mistakes, like quoting from a multi-page hypothetical argument that lead the student to completely misinterpret the opinion. It's easy enough to misunderstand a nuance of a legal argument when you read opinions, asking someone to guarantee their correct about a summation of 120 pages of text within 5 minutes, or even an hour, seems unrealistic.

News organizations like NPR like to be accurate when being accurate will only take a few hours of work. And I'd rather they be correct than fast.

NPR's standard of understanding before putting it in the article is likely a little higher than having a reporter skim and a Ctrl+F, especially in the era of "fake news" accusations.

If you actually have a writer who is already familiar with the legal aspects of the case, you can put out insightful analysis very quickly (cf. SCOTUSblog). Instead, we live in a world where the NPR journalist (Nina Totenberg) has just about every legal journalism award you can receive but doesn't have a law degree and is most famous for legal soap-opera material (e.g., revealing which supreme court justice had smoked marijuana).


The reason there's no analysis here is because there isn't a market for it.

The "legal soap-opera material" demonstrated his background check had missed something, and wound up in the nominee withdrawing his nomination. Single-handedly torpedoing a SCOTUS nomination seems like pretty meaningful reporting.

Expecting journalists to have second degrees in law isn't a reasonable standard, if for no other reason than the financial burden it'd inflict on an already fairly low paid profession. (Hell, many lawyers struggle with their law school loans.) Chances are she's cultivated plenty of legal minds to help with analysis - perhaps even one or more of the justices themselves.

You misinterpret. First, the point isn't that marijuana use isn't important, the point is that this class of reporting is orthogonal to legal analysis. It would be as if the most famous professional football players were fantastic comedians but never played ball in college. Second, a law degree is a reasonable (albeit imperfect) standard if legal analysis is desired; that it would be hard for journalists to obtain this just tells us there's no market in it. (That is, people with legal training are not rewarded.) Law degrees are also super expensive to obtain for people who just want to do legal aid, but such lawyers need the training nonetheless because they actually have to understand the law to do their job. Legal journalists do not.

> Expecting journalists to have second degrees in law isn't a reasonable standard

Who said anything about a second degree?

Quite right, which is exactly why the article was just a brief summary, not including anything that didn't meet their standards, right?

From the decision: "This decision is narrow. It ... does not address other business records that might incidentally reveal location information" and "We hold only that a warrant is required in the rare case where the suspect has a legitimate privacy interest in records held by a third party."

Looking side-eyed at the definition of "legitimate privacy interest", because I would think that any request for almost any business records of a person would involve it.

Why isn't there some kind of "privileged access" test? If the third party gives the information to anyone upon request, it should be considered less private than if the police need to "ask" for it.

Not in an absolute sense. A concerned citizen might want to be helpful to police by providing them lots of information, and that shouldn't need a warrant. But it seems like a pretty strong signal that, if the police are asking for it, it is more likely to be private.

Does this outlaw stingray use by police? If I am near a suspect and they get all calls in the area, I would be tracked unlawfully?

I've been skimming but I don't think the data stingrays collect would count as "business records" since they are actually (AFAIK) intercepted communications.

Of course, I think they should be subject to the same restrictions and oversight. It's encouraging that the SCOTUS seems to be recognizing (to some degree) the relatively new and uniquely horrific potential of unchecked electronic surveillance.

My reading of SCOTUSBlog implies that they in fact were fairly careful to imply that today's ruling does not affect stingray use.

> "He took pains to point out that the ruling did not “express a view on” other privacy issues, such as obtaining cell-site location records in real time, or getting information about all of the phones that connected to a particular tower at a particular time."


That's what I was wondering too. There hasn't been any mention, and this is for a years old cellphone case that doesn't deal with GPS tracking, just regular tower triangulation. (The podcast Serial, season 1, covers an interesting cases where such data was used to convict someone for murder).

I don't see any specific mention of the Stingray in any of the articles I've seen on this, but from the surface it would seem to indicate police would need a warrant to use a Stingray to target an individual.

Anyone else got more info?

It doesn't immediately have that effect. Very likely police will continue to use stingrays until courts explicitly rule against it (and probably has been appealed to the supreme court).

However this does indicate the way that the supreme court leans. Not only does this suggest they would rule against stingrays, but it also might push lower courts to also rule against them.

I wish they had gone further. In the modern age the concept of data hosted or stored with a “third party” is no longer useful in its entirety.

It’s questionable to me that where the bits are stored is even a relevant component of a multi-prong test, let alone an overriding factor.

The way the bits are accessed is certainly relevant but the location of the network attached hard-drive should have absolutely zero bearing.

This would have squared up well with the issue of offshore data warrants which got punted off the docket after new legislation was enacted to provide a compromise solution to that specific issue.

In any case, a great step in the right direction.

> I wish they had gone further. In the modern age the concept of data hosted or stored with a “third party” is no longer useful in its entirety.

ISTM that that's much more a task for the legislative branch than SCOTUS. Now congress is also defunct to a significant degree, but there's some limits to what you can infer from the constitution...

> The way the bits are accessed is certainly relevant but the location of the network attached hard-drive should have absolutely zero bearing.

Hm, but that's not really the question, is it? Email contents, and likely online storage contents, already has a warrant requirement.

I haven't read the opinion, but what I need to know is what is meant by "obtaining"? I really hope it was made clear that it is even getting the data, not just looking at it or accessing it. This is a crucial difference. More importantly, it could put legal burdens on companies to ask for a warrant before providing this information.

Also: "the decision also allows for warrantless cell-tower location information searches [...] for national-security purposes." Sigh.

and for 911 calls. So in theory, if there's a case involving a 911 call, that location information can be used without a warrant.

The NY Times coverage says it's very limited. Roberts wrote:

“We hold only that a warrant is required in the rare case where the suspect has a legitimate privacy interest in records held by a third party"

IIRC the current 4th amendment interpretation, 'third party doctrine' says that is a rare situation. However, Roberts also wrote:

“While the third-party doctrine applies to telephone numbers and bank records, it is not clear whether its logic extends to the qualitatively different category of cell-site records,” he wrote. “After all, when Smith was decided in 1979, few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements.”

“When the government tracks the location of a cell phone,” the chief justice wrote, “it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.”

Also, this seemingly ignorant comment from Kennedy (i.e., it seems a meaningless distinction), though he's not quoted and a brief summary so it is prone to misunderstanding:

In dissent, Justice Kennedy wrote that GPS devices provide much more precise location information than do cell towers.


How much does that help in practice? The judicial branch has a history of taking the police's word without too much push back on the flimsiest of evidence.

By requiring warrants, they're involving the judicial branch.

Before, government investigators were dealing directly with the communications providers and bypassing judicial oversight.

The judicial branch is just going to rubber stamp anything that the police say they want.

As stated by another comment, now they have to create the standard paper trail for each tracking instance, which makes accountability and transparency a semi-valid possibility

Probable cause is a low bar, but it's quantifiably higher than no bar. What constitutes sufficient PC for a warrant is a related, but distinct issue from whether PC (however interpreted) is required at all.

Yes, but now the police have to do the work of asking, which is better than nothing.

AND a judge has to put their name on it. Granted, IDs of judges are kept secret for certain courts, BUT nothing stays secret forever, e.g. Stasi records in the former DDR.

What is your evidence to support this claim?

"As technology has enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes, this Court has sought to 'assure[ ] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.' Kyllo v. United States, 533 U. S. 27, 34 (2001)."

This is a sensibly balanced way of thinking about the Fourth Amendment.

Does anyone know if and how this would affect cellphone companies who sell location data to data brokers?


You practically can't opt of this or are often unaware given the complexity of an average app's TOS.

The decision seems to be pretty narrowly focused on law enforcement and rules of evidence, so it shouldn't stop practice from continuing.

How would this affect law enforcements ability to use data they bought from telcos?

IANAL, but the way I read it they would not be able to use that data without a warrant, which will likely mean that law enforcement will no longer be paying for a third party when they could just use the warrant to get it directly from the telcos. (Unless the telcos don't have historical data but a third party does? Either way, a warrant would be required to gather that data without risking jeopardizing the entire case.)

Third-party doctrine has been on borrowed time since at least Jones with Sotomayor's concurrence. Carpenter paves the way for moving the legal understanding of privacy beyond narrow property talk and the ill-suited third-party doctrine.

So does this Supreme Court ruling mean that when the Oakland Police and FBI used a Stingray to locate an attempted murder suspect without a warrant their actions were illegal? We must hold the FBI accountable for their violation of the 4th Amendment.


There should be another ruling. 3 letter agencies should also need a warrant to track cell phones too.

Basically, this ruling means nothing in the grand scheme of things. We are being tracked without our permission & the police can probably get as much info from the US government agencies by just asking for it.

I listen to the local police radio a bit, and if the caller is on a cell phone; they usually have the location of said phone.

I might be misreading, but if they need a warrant to track, wouldn't they need a warrant to get a singular location for an actual 911 emergency?

Phase 2 location data for 911 calls can be legitimately treated differently as there is no expectation of privacy necessary when dialing 911 for help.

I believe location data for 911 calls is part of the TOS for the phone lines.

Wow, something that makes sense. Fair for the average citizen. I can't believe it.

I would be ok with fishing with CSLI data for crime sprees and other applications.

The shit part about this is that this ruling is going to be very visible and people are going to try to make this data useless.

"Secure in their persons, houses, papers and effects" is the text of the amendment so my guess is this counts as persons? Didn't get a chance to read the judgement

I believe in another decision they extended the idea that a Phone is becoming part of a person.

That's silly. A phone is clearly papers.

Paper has become digital.

Does this even matter knowing that police can just purchase location data from carriers like we recently found out (securus) ?

Can someone explain why a warrant under the federal Stored Communications Act is easier to obtain?

The order under the SCA is not a warrent, and doesn't have the same standard of proof.

Specifically 18 U.S. Code § 2703 means the government can request location information [1] with a court order as described by (d). The standard for the court order is "reasonable grounds to believe that the contents ... are relevant and material to an ongoing criminal investigation".

reasonable grounds << probable cause

[1] under (c)(1)(D) as the cell location is not ljisted (c)(2)

that's interesting, but one could assume that if some member of a gang points out the leader of the gang to the police, the court would allow them to employ surveillance techniques needed to acquire evidence. Wouldn't that kind of information be sufficient to pass the Probable Cause test?

O like the faceless judges that grant thousands of warrants? There's no accountability and it's absolutely criminal. https://youtu.be/yVwAodrjZMY?t=7m31s

Disgusting that it only passed 5-4.

I'm somewhat heartened that 6 Justices were in agreement that cell records should be protected from warrantless lookups.

Gorsuch appears to have dissented because he disagreed with the rationale of the decision and felt the 4th Amendment protections should be far stronger.

> Gorsuch appears to have dissented because he disagreed with the rationale of the decision and felt the 4th Amendment protections should be far stronger.

In that case why did he write a dissent and not a concurring opinion? Isn't that what they are for, or have I misunderstood?

It's my impression that Supreme Court justices write their opinions however the hell they want... as a practical matter if the votes were going the other way he probably would have written a "dissenting concurrence" rather than a "concurring dissent".

Sometimes. The reason he voted against is because he's so aggressively trying to rearchitect the past several decades of 4th amendment jurisprudence that the defendant would have needed to include a very different set of arguments to meet his standards. Gorsuch states that there's a good chance these records are "papers" that the defendant has at least some property interest in, but that the defendant failed to properly raise this argument and therefore waved it by default (so Gorsuch must decide against). He then basically ends with a plea for future defendants to include a set of arguments based on his preferred property-centric regime so he can decide in their favor.

As did yesterday's decision overruling the 80s decision requiring physical presence in a state to collect sales tax.

Someone reneged on his promise to avoid 5-4 splits.

The ethical side of this discussion in Law Enforcement is a never-ending debate.

shouldn't that apply to companies too?

No, the Fourth Amendment only applies to the government. You'd need to pass a new law prohibiting companies from doing the same.

So what happens when a company is acting on behalf of/as an extension of the government? And exactly how close can that relationship get?

If I'm a cell phone company and decide to just give the government access to all data I have pass through my systems, is that allowed? What if the government gives me some benefit in return for it?

> When police apprehended some members of the ring, the smaller fish implicated the leader of the ring, Timothy Carpenter. Police got a court order to get access to 127 days of cellphone tracking records for Carpenter and other members of the gang.

> Lo and behold, Carpenter's general location information matched the robbery locations, and that information was used to help convict him. Carpenter appealed his conviction to the Supreme Court, contending that the Constitution required that police first obtain a warrant before getting this location information from a service provider.

This paragraph makes it seem like the govt must get a warrant before it can ask the service provider for that information.

But what happens if I give without being asked? If I provide an API for them to pull any data they want, is it that they need a warrant to make a data pull? If I drop off a book with the data, they need a warrant before opening the book?

> So what happens when a company is acting on behalf of/as an extension of the government? And exactly how close can that relationship get?

FYI, the legal term you're looking for is "state actor". In case that helps with googling.

> the Fourth Amendment only applies to the government.

Source? The way I read it there doesn't seem to be any such restriction.

IIRC there weren't corporations in the modern sense when the bill of rights was written.

The Constitution is binding only on the government; it is a document that lays out what the United States federal government, and, in a few cases, what the states of the United States can and cannot do.

The Bill of Rights is a set of 10 amendments that restrict what the federal government can do with respect to citizens. The 14th amendment extends those restrictions from the federal government to include state governments as well. (Since local governments are considered extensions of the state government's jurisdiction, it's included as well).

> IIRC there weren't corporations in the modern sense when the bill of rights was written.

The Virginia Company is a corporation in the modern sense that is literally the origin of the United States. Actually, if anything, corporations have gotten less powerful since the Bill of Rights; we don't have any companies running countries any more.

> IIRC there weren't corporations in the modern sense when the bill of rights was written.

The Dutch East India Company was a publicly-traded multinational corporation as early as the early 1600s.

Burdeau v. McDowell

The police were getting it from the companies, without a search warrant, so one step at a time.

Supreme Court rulings are narrow in general, and this opinion took pains to make it narrower than normal.

Companies need to know where you are so they can route your call, bill the appropriate party the correct amount, and credit the appropriate tower operator.

Interactions and the special implicit relationship with the government are involuntary.

Unfortunately, the constitution was written by folks who at the time likely could not have imagined the kind of corporate power and technology that exists today.


... in the US.

Token HN conservative here. If you ever get curious about the conservative moment please don't hesitate to email me. There's a lot of interesting debate going on in the Bay Area, but it's sort of subterranean for obvious reasons.

I’m less liberal than many, but I’m curious how the conservative movement feels issues like climate change and clean oceans and clean air, or even net neutrality ought to be dealt with, if not by govt regulation. Or is the line of thinking that only those rich enough to buy face masks, and have climate controlled mansions with private beaches may enjoy those things.. Maybe this is entirely orthogonal to this thread, so maybe there could be a separate HN thread just for this discussion? I welcome your suggestion and am wholly on board but I really don’t think individually emailing you is the most productive method to have, what is in fact, a wide ranging discussion with multiple participants.

>I’m less liberal than many, but I’m curious how the conservative movement feels issues like climate change and clean oceans and clean air

Generally, via Pigovian taxes that internalize the externality consistently without creating additional distortions or utilizing arbitrary ad-hoc regulation — ideally in a revenue-neutral way via dividends.

See, for example, the Trent Lott-John Breaux group announced this week to push for the Baker-Shultz carbon dividend plan (supported by economists including former CEA chairs Greg Mankiw and Martin Feldstein and Fed chairs Ben Bernanke and Janet Yellen).

(It should be noted that the Clean Air Act and the formation of the EPA came under Richard Nixon, of all people.)

[0] Americans for Carbon Dividends (new group, political): http://www.afcd.org

[1] Climate Leadership Council (old group, academic): https://www.clcouncil.org

[2] AFCD Article: https://www.nytimes.com/2018/06/19/climate/carbon-tax-climat...

[3] This year's op-ed on AFCD: https://www.nytimes.com/2018/06/20/opinion/climate-change-fe...

[4] Last year's op-ed on CLC (economists): https://www.nytimes.com/2017/02/08/opinion/a-conservative-ca...

[5] Last year's op-ed on CLC (politicians): https://www.wsj.com/articles/a-conservative-answer-to-climat...

If that approach truly had broad support among conservatives, it likely would have been implemented by now. (I consider myself very liberal and am a strong supporter of such an approach.) But the reality is that a plurality of US conservatives still (as of 2015) believe that the impacts of climate change will never materialize. https://news.gallup.com/poll/182807/conservative-republicans...

Right. That covers how to solve them, not that they should be solved. (But I suspect Bay Area conservatives aren't heavily represented in the climate change denialism group.)

Sure - but it’s important to distinguish that that’s a mainstream view among a relatively small subset of conservatives, not a mainstream view among conservatives in general (though I agree that the split is probably different in Silicon Valley). Liberals support a broader range of solutions, some of which would create harmful economic distortions, but my impression is that few liberals would choose the status quo over the approach you’re suggesting.

To put it another way, if you’re a single-issue voter in favor of Pigouvian taxes on greenhouse gas emissions, you’re probably better off voting straight-line Democrat than straight-line Republican. If it were a question of whether to implement a Pigouvian tax or, say, subsidies for wind and solar, that would be a different story (and there’s a decent chance that I’d vote Republican).

The Baker-Shultz plan was written in February 2018 so it's going to take some time until it is finally implemented. Also, a lot of hard-core party line Republicans are old and hold the same beliefs from decades ago. These are the conservatives who believe that climate change is all a hoax. When they die, their voices and beliefs will phase out and the voices of the new evolving GOP will phase in. Just my two cents.

Older Americans are overrepresented among climate change deniers, but not overwhelmingly so. As of 2014, 44% of climate change deniers are under 50, and 77% are under 65 [0]. So most will still be around for several decades. More concerning to me are those who will acknowledge the impacts of climate change but balk at the costs of addressing it, further delaying action. And of course, even if and when a global consensus is reached that significant action is needed, that action will take years or decades to take effect.

In the meantime, how many trillions of dollars will we spend to address relatively immediate impacts such as flooding in coastal regions and changes in growth patterns for crops? And how many trillions of dollars will we add to the cost of reversing climate change's effects - if it's even possible to reverse them at all? Not to mention non-economic consequences like the disruption of marine ecosystems.

[0] https://news.gallup.com/poll/168620/one-four-solidly-skeptic...

The plan was actually written in February 2017. Pardon my mistake.

As a conservative from the SF Bay Area, I support putting a price on carbon. I see this as an opportunity for Republicans to take a seat at the climate table and make sure that our voices are being heard. The gradual increasing tax that the Baker-Shultz plan proposes would incentivize companies to innovate and transition toward greener energy. Because this revenue-neutral tax would be passed on to consumers in the form of a monthly dividend, the economy would benefit because there will be more consumer spending. This Pigovian/correctional tax would help the free market in accounting for unforeseen individual costs/benefits. Additionally, about 70% of Americans would be net financial winners. Plus, the plan would make a lot of current regulations unnecessary, reducing the size of government. What's interesting to note is the fact that a lot of young conservative Republicans are supporting this (like the group Students for Carbon Dividends) revenue-neutral carbon tax. I think that as time goes on, the GOP will evolve and it won't be unusual for conservatives to address climate instability.


I started to downvote you on your "No True Scotsman" fallacy, but the more I read, the more I felt that I was just downvoting on biases.

Regardless, I don't believe there's room for that kind of negativity on HN toward roughly half the population of America, most of whom are assuredly neither evil nor disgusting.

I meant the politicians, you're right. I updated it. I stand by my words though that the politicians are disgusting. I feel the same way about Democrat politicans as well, though.

The result of the conservativism and libertarian things you mention are not properly considered. It results in what is known as the Tragedy of the Commons.

As personal profit and selfishness takes a greater precedence than the wellbeing of the public, the commons must suffer tragedy.

It is indeed true that selfish motives take precedence - in the minds/deliberations of those that stand to profit. But isn’t a govt formed of the elected representatives, who are in office just to represent the interests of the commons?

I think an argument is that at some point the government becomes an entity of its own e.g. thousands of faceless bureaucrats so they are not fighting for the commons but for their own existence.

This is getting OT, but I think there is a mimetic and performative nature to any discussion larger than, say, four people that means you can never get serious as a group (or on a web forum). In any event would love to hear from you.

Yes, this is both generally relevant, but specifically OT.

Hope the mods split it off.

There is indeed a performative aspect to a broad discussion, but it offers the advantage of raising broad based issues that just might not occur to an individual in a limited closed session.

While HN is not immune to the cons of online communities, I feel a generally civil tone, free of political snark, or heavy biases can be maintained.

This is basically totally unrelated to the comment it's replying to.

I think it's quite related to the curiosity about the decision mix in this Sup Ct case. But congratulations for Interneting today. You were needlessly crass from a safe distance. Hooray!

Your comment could have included a bit more of a logical segue. It came across fairly off-topic to me, too. HN generally downvotes or splits off OT discussions, which might be the reason someone thought to mention it.

I'm not in the bay area, but I'm curious about the conservative movement.

I'm in the bay area, where the "anti-conservative" movement is prevalent which means not considering anything that is against the "anti-conservative" party line.

many things aren't considered on their merits simply because the conservative face has done or said things they disagree with even though it is completely unrelated to lawmaking or anything congress would even consider.

any dissent is seen as support for the current administration.

any dissent is seen as TACIT consent for race-based discrimination, xenophobia, and gender based assault and inequality.

any dissent elevates you to being the spokesperson of everything they hate.

I understand why. Everyone's entire political party needs to operate as a unit to swing power in their favor.

but it is so one dimensional that many people reject it, since there always is a gradient for each separate issue.

conservative in this context doesn't mean anti-progressive, or risk averse, or traditional. it is just a political grouping, but in the bay area it means even slightly considering the merit behind a not-democrat party proposal.

I agree that it's ridiculous, since even considering a "conservative" idea makes you the enemy.

But if you vote republican, I do very much agree with the first 2 points.

> But if you vote republican, I do very much agree with the first 2 points.

which is funny because now all sides, of two, think each other as fascists.

democrats think republicans are fascist because the lack of reprimanding against insensitive ideas, while the republicans continue to promote bigotry with no focus on civil rights

republicans think democrats are fascist because democrats want to reprimand any voters that don't vote democrat and didn't waste their vote on a non-republican party

all while nobody actually does what fascists actually did

How does conservative not mean anti-progressive? They're opposites by definition, aren't they?

I'm not just talking about a colloquial US usage. This is also how history books divide political forces when describing past societies.

Because in reality, people and politics are a complex matrix of thousands of issues and not a simple left-or-right slider.

Language doesn't always capture complexity, but we're arguing about definitions, not about whether they apply wholly to any one person.

They do certainly apply wholly to ideas, though.

> I'm not just talking about a colloquial US usage.

but thats what we are talking about, thats what context means

its as fluid as any variable name you add to a program, in this case that variable's name is conservative.

I meant that in all contexts, conservative and progressive are antonyms, not just in colloquial usage.

right, we got that and that's wrong.

if your observation became "hey that party self-identifies with the wrong word and maybe there is a historical reason for this" then yes, that is correct


> I mean, small wonder. Look at what was being done in the conservative name recently: separated kids in cages. That’s a hard legacy to justify.

A result of the Flores Settlement[1] from 1997 which came about under Clinton and Reno in response to the practice of keeping children in general population detention. So not really a conservative legacy...

It's a double edged sword -- separating children from their families, but also from the creeps[2].

[1] https://youthlaw.org/case/flores-v-reno/ [2] https://www.vox.com/2018/6/20/17484546/executive-order-famil...

The current administration is responsible for its own actions; they are the ones elected and in power. If they don't want or aren't competent to handle their responsibilities, then they should step down. Blaming others and making excuses is absurd and irresponsible. You are the POTUS; figure it out.

Seperating kids in cages and wrapping them in foil was an Obama era photo that the NYT "mistook" for a current one.

You seem to be conflating an act and a photo. There are first-hand reports from members of Congress who have verified that what the poster above described is taking place.

Yes, it is happening now. The point is that it was also happening under Obama (I don’t know the scale of it though), so it is unfair to blame just the Donald for it, while Barry gets a free pass. At least Trump did reverse his stance on splitting families up, as a token, if nothing more.

I don't see how that's the point at all. There are many, many awful things that have happened in the past. It's still completely fair to blame people who are doing awful things now. I'm not trying to accuse you of bad faith, but in practice, bringing up past injustices by people who are no longer in power seems like little more than a distraction unless you're suggesting a way we can redress them now.

Oh no, I never said or meant that current bad practices are justified based on past precedents.

Just that blaming the incumbent while ignoring identical practices by the predecessor seems borderline biased reporting by the media. Not that the current situation shouldn’t be highlighted - it most certainly should be. But giving the impression that it is a new development (by ignoring the fact that it isn’t) seems politically motivated - just because of the extant political tensions and divisive climate.

I’m not sure past wrongs can indeed be redressed except notionally, by official apology, but at the very least future wrongs ought to be prevented.

It's a false equivalency. Scale matters, as does the intent/policy of the administration.

"Immigration experts we spoke to said Obama-era policies did lead to some family separations, but only relatively rarely, and nowhere near the rate of the Trump administration."


I’m curious as to what’s next for conservatives who reject human cruelty and actually care about their fellow citizens, country, and human beings.

I'm curious what the next act for leftist ideology is, since various forms of it (mostly communism) were responsible for the most human misery in all of human history in just one century.

In America almost no leftists are communists. The moderate ones are some hybrid of capitalism and socialism and the radical ones are anarchists.

I hate participating in these discussions though, because everyone’s characterizations of their opponent are so absurd, it’s like—where do I even start with you people?

I’d tell you the same I’d tell crazy liberals... go talk to some actual people and find out what they really think rather than basing your opinion of half the population on some crazy person you saw on the internet once.

"In all of human history"? Are you sure? Ghenghis Khan and Alexander the Great likely killed more people than either Hitler or Stalin.

And then there's the institution of slavery, which wasn't political until abolition efforts were underway. (Semi-related: hard to label abolitionists conservatives or rightists.)

It also bears mentioning that Hitler was anti-immigrant and nativist, which are the forces that animate today's Western conservative backlashes (including Trumpism).

Have to remember the world population was much smaller. Maybe 150 million in Alexander's time and 400 million in Ghenghis Khan's. They'd have had to do a much more efficient butchery to reach the same raw numbers.

That said, a little googling seems to indicate that the Mongols do, in fact, win that competition. They were pretty big on genocide.

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