Low-level federal judges balk at law enforcement asking for electronic evidence
washingtonpost.com
washingtonpost.com
It's of constant frustration that the Founding Fathers didn't include the actual word "privacy" anywhere in the Constitution or Bill of Rights, but I'm one of the people that believe the Fourth Amendment basically covers and makes illegal almost all mass collection and seizure of electronic data that the Federal and local governments seem to believe is their right.
I may not be allowed reasonable assumptions of privacy when in a public space, but I do believe my email (stored personally or by Google) and my phone calls and text messages DO have a reasonable expectation of privacy around them, and their collection by government agencies must be extremely tightly scoped, if at all.
But that's just me, I suppose.
(Edit: missing word.)
By this standard, an awful lot of what's done by the police and military is wildly unreasonable. Indeed, the extraordinary threat to democracy posed by their near-total lack of restraint is why their orgy of abuse has attracted such shock and dismay. No reasonable person can expect this hyper-secretive, massively financed, and totally contemptuous set of organizations to happily coexist with legitimate democratic rule and the security of individual liberty.
By that standard, the Founders clearly anticipated and specifically disallowed what's now unfolding.
We act like we think it's magic, so we can rationalize having to come up with a new set of laws that are more permissive to abuses of power. It starts when a court says that a searching a pen register is so small an intrusion as to be insignificant, and that no one could possibly have a "reasonable expectation" of privacy when interacting with someone who has to record their usage in order to bill them. After that, it was an explicitly slippery slope.
The US Constitution is, in general, addressed to the government, giving the government a limited set of powers, and not to the people, and, therefore it explicitly says it does not enumerate rights. It assumes your rights are everything outside the scope of government. That was the approach to future-proofing it. So there really is no problem with the Constitution. The problem is the people allow these things to happen.
I've know about it since Terminator II for crying out loud.
As the late, great Justice Hugo Black argued[1] in his dissent in Katz, eavesdropping did indeed exist, and existed well before, the time the Constitution was drafted. In ancient times - and to say that the Framers overlooked this is utter poppycock! Yet, for whatever reason, spying on your privacy was dodged when those Framers and the legislative branch wrote the land's laws and amendments to it.
I know it's tempting, especially with Roe, but please don't rely on the Supreme Court, an appointed and politically insulated judicial body, to write law just because once in a while they are on the same page as you. Not their job, nor should it be. You know better than that.
Want a right to privacy? Write your congressman (or apply for uproxy private beta testing).
[1] http://www.law.cornell.edu/supremecourt/text/389/347#writing...
This argument gets a lot stronger when you remove the Ninth Amendment from the Constitution.
People can joke about all the "penumbras and emanations" silliness, but the fact remains that there's explicit support for protecting rights not explicitly enumerated.
At least to me.
Further, I dont really care about my privacy nearly as much as can be done with a lack thereof.
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What's vague about this amendment to you? That it lacks a footnote saying "Yes we deliberately did not include a right to privacy here, but want to give the Court some wiggle room to do the right thing"?