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Comment by mywittyname | Hacker News Reader

We can't rely on SCOTUS to make this ruling for another 50+ years, so our best hope is to start with state legislators. The majority of law enforcement happens at a state level, and most state legislators aren't as hamstrung as the federal one is, so this is the easiest way to achieve the most impactful results.

Also, POTUS is in charge of most federal law enforcement agencies. So it might be possible to handle this at a federal level through an executive order. Obviously, this doesn't have the staying power of a proper law, but it's something.

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>> We can't rely on SCOTUS to make this ruling for another 50+ years

If that's a comment about the bureaucracy working slowly as hell, that is reasonable. If it's about the makeup of the court, I disagree.

Kavanaugh and especially Gorsuch are two you want on the court in this case.

Judiciary doesn’t make laws. Every controversial ruling that people worry the SCOTUS could be permanently solved by passing a law or amending the constitution. But if that happens then lawmakers no longer have the talking point to use when running for re-election every 2/6 years so both parties they a shared incentive to keep the status quo.

If you don’t put it into law/constitution then a new set of justices could reverse the ruling in the future.

> Kavanaugh and especially Gorsuch are two you want on the court in this case.

What makes you say that? From what I can tell, Gorsuch doesn't seem keen on limiting law enforcement powers at all. Kavanaugh is a bit of a wild card, but I'd be curious to hear times when he's agreed on limited police powers.

> The new rule the Court seems to formulate puts needed, reasonable, accepted, lawful, and congressionally authorized criminal investigations at serious risk in serious cases, often when law enforcement seeks to prevent the threat of violent crimes. And it places undue restrictions on the lawful and necessary enforcement powers exercised not only by the Federal Government, but also by law enforcement in every State and locality throughout the Nation.

https://en.wikipedia.org/wiki/Carpenter_v._United_States

We just need members of Congress to have embarrassing info or evidence of criminality exposed by data broker collection. Then they'll seal everything up like with video rental records.

I'm not sure most members of Congress have the capability to be embarrassed anymore. The ones that do probably don't have much interesting to hide.

Feels like it would be more airtight to amend the Constitution. Why hope that precedence falls a certain way instead of removing any ambiguity from the law?

The last amendment to the US constitution that was proposed and then ratified came in 1971. With bipartisanship being what it is today, do you think there’s any chance of pushing another one through at this point in time? The bar is high, and American politicians are loathe to give any opponents perceived wins, even if it’s regarding overwhelmingly popular policies.

Sure, you’re probably right that it’d be more airtight. It’d also mean an almost herculean effort. It’s probably best to explore other options as well.

Between 1971-72 there were 2,500 politically motivated domestic bombings in the US. Partisanship now, as bad as it is, doesn’t come close to that level of violence.

That maybe more because getting away with bombing was easier then than now?.

While there was issues that got escalated in the past - there was literally civil war over one, the data shows that amount of legislation passed has slowed down considerably recently.

I suspect the bigger issue is public indifference. Only a small percentage of voters anywhere on the political spectrum vote on privacy as an issue.

There's a good chance the Constitution covers this now. What we need are uncompromised courts to hear and rule on 4A violations.

I'd agree that the 4th Amendment ought to cover it.

It isn't unambiguous, though. It isn't hard to see how a lawyer could point out that "and to forever secure the people, their persons, houses, papers, and effects, against all unreasonable searches and seizures under the guise of law" says nothing about purchasing data from a 3rd party. This wasn't really something that would have come up in the 18th century.

Extending the letter to match the spirit is why reflection is built into the runtime of the current constitution.

Can a Gov agent legally avoid the warrant requirement by paying some rando to perform an invasive search?

And furthermore can they reverse the order of said invasive search and payment through a wink-wink arrangement? I think the case is pretty strong against the government here. The EFF should bring a suit.

The federalist society which has hugely influential attorney and judicial membership believes in a textual interpretation of the constitution.

They wouldn't go for a sensible modern reading but instead stick to gospel like dogma on how it was intended to be read 250 years ago I guess.

I could get behind an originalist reading of the copyright clause.

The intentions that 3rd party has changed, but having a PI follow a suspect, or coercing (with money or threats) a CI to provide information predates computers and the Internet and probably the Industrial Revolution as a police tactic by a huge margin.

Purchasing "data" from a 3rd party is a modern Internet spin, but it's not like the concept is brand new to the law or the legal department.

I don't necessarily believe a Constitutional amendment is necessary, since this would be a law limiting government reach, not extending it.

In all likelihood, the amendments text would look something like:

> Section 1: The fourth article of amendment to the Constitution of the United States is hereby extended to include information or detail held, owned, or otherwise under the custody of those other than the accused.

> Section 2: The Congress shall have power to enforce this article by appropriate legislation.

Which then necessitates some accompanying legislation to further clarify. But I'm pretty confident we can get there through legislation alone.

I'm not so pessimistic. United States v. Jones showed that both wings of the court can unite to push back on this kind of overreach.

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