[HN Gopher] US Supreme Court asked if cops can plant spy cams ar...
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US Supreme Court asked if cops can plant spy cams around homes
Author : LinuxBender
Score : 110 points
Date : 2022-11-19 17:11 UTC (5 hours ago)
(HTM) web link (www.theregister.com)
(TXT) w3m dump (www.theregister.com)
| 0F5 wrote:
| Tangential but literally moments ago I evaded a prostitution
| sting. I met someone on Grindr who was really cute and she asked
| for payment upfront. Then I said that makes me nervous and I'd
| like to get to know you first, just a regular date. She agreed
| and then when I arrived to pick her up she changed her tack and
| demanded payment to do anything at all. I said ok, meet me in the
| lobby so we can discuss further. Refusal. Ok video chat with me
| to discuss further. Refusal. All with bullshit excuses. I played
| every angle I could and the shape of her was that she accepted
| nothing except what could incriminate me. I understood it was a
| sting very quickly. It's so disturbing that the cops would saddle
| me with a class D felony even though I never wanted to pay her.
| They tried to pressure me in the moment to create criminal
| behavior where there was none. And then I would go to prison and
| probably be killed, certainly changed and damaged mentally for
| the rest of my life. Years of my life gone, my career ruined and
| my dreams destroyed all for those bastard cops to have the thrill
| of making a bust. It fucking sickens me. Our society is deeply
| sick where this violence is not only tolerated but endorsed and
| lawful. The cops are bastards and we need to put them in their
| fucking place. Thank god for first amendment auditors...
| pwg wrote:
| While those actions are indicative of a possible sting, they
| are also equally indicative of a scam artist. "She" might have
| been some guy (male) in a boiler room somewhere just trying to
| scam people out of their money. The avoidance of any form of
| contact where you could see that the person you were conversing
| with electronically was not the person from the photo, while
| requesting payment up front, fits the scam artist method as
| well.
| devilbunny wrote:
| > even though I never wanted to pay her
|
| You wanted a prostitute but didn't intend to pay?
|
| If you're just looking for a hookup, the first hint of a money
| demand should have been met with "nope, not interested in pay-
| for-play". And drop them.
| jimbob45 wrote:
| * And then I would go to prison and probably be killed,
| certainly changed and damaged mentally for the rest of my
| life.*
|
| My very limited understanding is that the vast majority of
| these sting cases are dismissed as entrapment and are largely
| about dissuading others from attempting to solicit in the
| future. Are there any lawyers on that could speak to this?
| lazide wrote:
| Not a lawyer (sorry), but just from following the news it
| does seem pretty clearly about putting a chilling effect on
| the marketplace (buyers and sellers, but especially sellers)
| through fear.
|
| Aka 'making an example' of someone. The buyers in particular
| only seem to get named in specific high profile cases or when
| the authorities feel it's _really_ out of hand and they need
| to do something drastic.
|
| Similar to drugs frankly.
|
| Unlike drugs, it seems extremely rare for anyone involved to
| actually get more than token jail time unless they are a very
| large scale madame/pimp (and jail is not, generally, prison).
| lotsofpulp wrote:
| > even though I never wanted to pay her.
|
| > I met someone on Grindr who was really cute and she asked for
| payment upfront. Then I said that makes me nervous and I'd like
| to get to know you first, just a regular date.
|
| So even after a woman asked you to pay her (for what?), you
| decided would still like to date this woman? And you expected
| to convince her to stop being a prostitute during the date?
| [deleted]
| lisper wrote:
| > I met someone on Grindr who was really cute and she
|
| There are women on grindr???
| bobthepanda wrote:
| With gay spaces one big issue is often critical mass.
|
| I would suspect that for MTF individuals that Grindr would be
| one of the few places with a critical mass of both people
| they are looking for and people looking for them, even if
| that's not really the intended or main target audience. From
| what I understand, trans individuals have a hard time on
| other dating apps because their profiles get reported a lot
| for being "misleading" (which is a whole debate that I'm not
| getting into)
| SoftTalker wrote:
| "She" doesn't necessarily mean biologically female, anymore.
| lisper wrote:
| Neither does "woman". (But your point is well-taken.)
| [deleted]
| [deleted]
| threadweaver34 wrote:
| bakugo wrote:
| There's something really hilarious and ironic about the
| statement "Our society is deeply sick" in the context of the
| rest of your comment.
| registeredcorn wrote:
| So someone asked you for money in exchange for sex, you agreed
| to meet up with them, and now feel outraged that the police may
| have tried to arrest you for engaging in illegal activity. Do I
| have that right?
| bryanrasmussen wrote:
| >They tried to pressure me in the moment to create criminal
| behavior where there was none. And then I would go to prison
| and probably be killed,
|
| what state are you in where paying for a prostitute would get
| you sent to prison?
|
| Why would you be killed in prison - for getting a prostitute?
| User23 wrote:
| I would like this to require a warrant, but it's hard to see why
| it should with the law as written. Placing a camera in a public
| place just isn't a search or seizure.
| sokoloff wrote:
| I think a camera placed by the police and targeted at your
| house for more than an incidental amount of time is a type of
| search. I'm somewhat struggling to see the counter-argument
| about how it's not in any way a search such as the 4th would
| require a warrant for.
| NikkiA wrote:
| Functionally it's no different from a stake-out, which
| doesn't require a warrant and is not a search. And that's
| what the supreme court is going to rule.
|
| There is, of course a difference in that you have a
| reasonable chance of noticing a stake-out taking place, but
| then you have a similar chance of noticing cameras being
| placed on utility poles near your home so...
| wnoise wrote:
| I don't see how a stake-out isn't a search. It might
| presumptively be a reasonable search that doesn't require a
| warrant, as it's not a search that interferes or
| trespasses. But they are looking for evidence, right? I
| call looking for something a search.
| saxonww wrote:
| Does it matter if the camera is for a nonspecific security
| purpose and incidentally captures your activity, vs. a camera
| installed for the _specific express purpose_ of recording your
| activity?
| 0xcde4c3db wrote:
| I can hear the officer's testimony already...
|
| "We received a tip that a drug deal was going down in this
| area; it's just a coincidence that one of the cameras
| happened to be able to see inside that house."
| coding123 wrote:
| Titles like this suck. I keep reading it as if the court was
| asking someone if cops can do x.
| RcouF1uZ4gsC wrote:
| I think the Supreme Court strikes this down. I think this is
| similar to Kyllo which rules against thermal imaging of homes.
|
| The majority opinion was written by Scalia, joined by Souter,
| Thomas, Ginsburg, Breyer.
|
| With Dissent by Stevens, joined by Rehnquist, O'Connor, Kennedy
|
| Thomas is still on the court. I think Gorsuch is even more
| protective of due process than Scalia. I think the 3 liberals
| would vote to strike it down. That is 5. Robert's, Kavanaugh, and
| Barret could go either way.
| doodlebugging wrote:
| It's time to crowdfund some cheap cameras that can be connected
| to a mesh network and deployed to cover the area where our
| elected representatives live and hang out. Blanket their
| neighborhoods with cameras and microphones and live stream it
| 24/7 so every constituent can see in real time how hard our
| representatives work for us.
|
| Track them from point to point and use Mastodon or the pitiful
| shell of Twitter to keep everyone informed about who they hang
| out with and how long they spend together, what they talk about,
| which devices they use, their favorite brand of beer or tennis
| shoe.
|
| We can call it RepWatch, PoliWatch, or whatever. It could be the
| next great social network and all they have to do to join is to
| run for office and win so we can monitor their habits, bad and
| good, and judge them on flimsy evidence.
| beached_whale wrote:
| Reminds me of when that adulterer website got hacked and people
| used government emails to sign up
| scruple wrote:
| Ashley Madison. Was talking to my wife about that last night.
| One of her friends found out that her husband was using the
| site and I was floored to realize that, years after that
| hack, it's still around. I don't know why I was surprised --
| it's not as if a leak / hack would curb the behavior enough
| to impact that companies bottom line -- but I was.
| MonkeyMalarky wrote:
| More surprising is that they haven't been swallowed up by
| Match Group.
| partiallypro wrote:
| They'll just ban the practice against government officials,
| make it a federal crime and allow everything else. Then they'll
| go by stock options on a private prison they throw people in
| that do this to them.
| doodlebugging wrote:
| LOL. You're probably right. That which is good for the goose
| can't possibly also be good for the gander. That would be
| ridiculous.
| siliconc0w wrote:
| Any spying that has the intention of determining the contents of
| a home/property should be illegal under the fourth. Watching
| everything that goes in and out of a property is equivalent to
| searching the property.
| moralestapia wrote:
| It always comes down to "reasonable expectation of privacy" in
| the eyes of that particular judge.
|
| I don't think nosy neighbors should be illegal, for instance,
| but if they choose to plant something _inside_ your property,
| then they should be in big trouble.
| jawns wrote:
| As many First Amendment auditors have demonstrated, filming in
| public is a constitutionally protected activity, and their
| popular slogan, "You can't trespass my eyes," means that if
| something is visible from a public place (e.g. a sidewalk) it is
| also legal to film it. That means a citizen (or police officer)
| can stand on a public sidewalk in front of someone's house and
| film all they want.
|
| So what makes this utility-pole surveillance different? The
| cameras are placed in public (outside, on utility poles which
| presumably involve a public easement). They are not equipped with
| extreme telephoto lenses or infrared cameras. It is hard, in the
| abstract, to see how that is any different than a First Amendment
| auditor doing the same thing.
|
| Where I think it's arguably different is in the sustained,
| targeted nature of the activity. If one or more private citizens
| decide to film outside a person's house for 15-30 minutes as part
| of an audit or similar activity, yes it's probably annoying, but
| annoying doesn't mean illegal. But if they station themselves
| outside the house night and day, recording the comings and goings
| of the residents, I think that arguably rises to the level of
| stalking. To be clear, I don't think the surveillance cameras
| meet the legal definition of stalking, but they arguably have
| similar impact.
| pessimizer wrote:
| SCOTUS will definitely approve of this. After Scalia died, any
| shared concept of an individual right to privacy died with him.
| That's why we should be thankful that prior restraint on speech
| was banned in the Bill of Rights, so only _enforcement_ of that
| restriction hinges on current nationalist fashion, rather than
| the _entire concept_ as in the case of the "right to privacy."
|
| Scalia's corruption, and his desire to deny the public the tools
| to prove it, was the thread keeping us all safe.
| pmoriarty wrote:
| Those of us who value privacy and want to protect it have to
| find ways of convincingly demonstrating its value to others.
|
| Merely calling it a "right" is just too hand-wavy, and doesn't
| convince anyone who doesn't already agree with you.
| mdp2021 wrote:
| You want a theorem. No problem. Privacy is a natural right.
|
| "I know what I am doing, and you don't." (It has to be
| interpreted as I did not write it in a literal form, but it
| will do at least for now.)
|
| Plus: one has the right not to be unnerved by peeking
| intruders. I have a viz for it, let me search for it and I
| will update the post. Edit: found:
| https://i.ibb.co/JCrzmbJ/clarkson-children-that-stare.jpg
| pessimizer wrote:
| Calling privacy a right isn't an argument. Calling for
| privacy _to be_ a right is what one makes an argument _for._
|
| So I don't know who you're arguing with.
|
| edit: I mean, I deliberately put scare quotes around it.
| kelseyfrog wrote:
| Calling privacy a right isn't an argument but it's a
| perfectly legitimate strategy for social legitimization.
| Repetition legitimizes, repetition legitimizes, repetition
| legitimizes and is a completely valid way of constructing a
| social reality in a way one wishes it to be. Besides, no
| one asked for a right and got it granted. These are socio-
| rhetorical problems, not logic problems.
| modriano wrote:
| Scalia wrote a few pro privacy decisions, but Scalia is in no
| way the "defender of the 4th amendment", hagiographic
| obituaries notwithstanding.
|
| In his Whren v US decision [0], Scalia gave police the power to
| stop and search any driver as long as they assert a traffic
| violation as the pretext for the stop.
|
| In Florida v Riley [1], he agreed that it's not unreasonable to
| police to use a helicopter to fly into position to see into
| property not visible from any adjacent building or from
| adjacent land, assert they can see marijuana, and use that as a
| pretext for a search warrant.
|
| In Lawrence v Texas [2], which focused on a case where police
| entered Lawrence's apartment (in response to a reported weapons
| disturbance) and found Lawrence engaged in consensual sexual
| act with another man, and Lawrence was arrested on charges of
| violating a Texas statute against "sodomy". The court ruled
| that individuals have the right to engage in sexual acts with
| other consenting adults when in the privacy of their homes.
| Scalia wrote a rancid screed of a dissent.
|
| Sometimes Scalia stood up for the 4th amendment, but he didn't
| value it more than his prejudices and ideological mission. And
| that makes it hard for me to say he thought privacy was an
| individual right.
|
| [0] https://www.oyez.org/cases/1995/95-5841
|
| [1] https://www.oyez.org/cases/1988/87-764
|
| [2] https://www.oyez.org/cases/2002/02-102
| jibe wrote:
| _Whren v US decision [0], Scalia gave police the power to
| stop and search any driver as long as they assert a traffic
| violation as the pretext for the stop._
|
| 1: it was a unanimous decision
|
| 2: they can't just assert a traffic violation, there has to
| be an actual violation of the law.
| Petersipoi wrote:
| Seems to me like GP is using the word "assert"
| intentionally to make it seem like Scalia supports giving
| cops the power to make up charges then act accordingly.
|
| No, Scalia didn't support police flying a helicopter up to
| your window and pretending they see marijuana then raiding
| your house. And yeah GP is going to argue that "assert"
| doesn't mean claiming something that isn't true. But the
| intention is obvious to the point that it's really
| difficult to see good faith here.
| modriano wrote:
| It's really not possible to dispute that the Supreme
| Court just tells police what magic words they need to
| include in their reports to make unconstitutional
| searches constitutional.
|
| In Terry v Ohio [0], a plainclothes policeman saw three
| guys casing a store, saw the outlines of concealed items
| that he believed to be guns, he stopped and searched them
| on that basis, and two of the three guys had weapons. The
| Court ruled that the evidence was admissible and the
| officer's "reasonable suspicion" made the search lawful,
| as the officer's safety may be endangered if they're
| questioning individuals with weapons. Without a
| reasonable suspicion that an individual has a concealed
| weapon, though, the frisk is an unconstitutional 4A
| violation.
|
| In this NY Civil Liberties Union study of stop and frisk
| data [1], going through NYPD stop and frisk data, from
| 2003 to 2013, 2585945 frisks were performed but weapons
| were only found in ~2% (!!!) of frisks. If your
| suspicions are wrong 98% of the time, it's pretty hard to
| describe the suspicion as "reasonable", but the SC
| declared that asserting reasonable suspicion is all it
| takes to make those unconstitutional searches
| constitutional.
|
| I'm not anti police, I'm a homicide researcher in Chicago
| and I have immense respect for a number of the officers
| and detectives I've worked with. But I can't look at
| these facts and then pretend they don't exist.
|
| [0] https://www.oyez.org/cases/1967/67
|
| [1] https://www.nyclu.org/sites/default/files/publication
| s/stopa...
| modriano wrote:
| 1. Yeah. Scalia wrote the opinion, and every other Justice
| signed onto it. Scalia is not some unique iconoclastic
| privacy loving Justice, he was in line with the way the
| court thinks about the 4A.
|
| 2a. Imagine a police officer falsely alleged a traffic
| violation. How much equipment would the pulled-over driver
| need to have to prove the allegation was false, and how
| much would it cost to then prove the allegation false? How
| much equipment would police cars need to prove every
| allegation was valid? Why are we going to pretend this
| isn't just another case where the Supreme Court is coaching
| police on what words they need to put in reports (eg
| "furtive gestures" to justify a Terry stop, or any traffic
| violation for this) to allow "us" to have our cake (the 4A)
| and eat it too (still overpolice Black neighborhoods and
| chase Black people out of suburbs)?
|
| 2b. Should driving 26 mph in a zone with a 25 mph speed
| limit eliminate protections against a stop and a search? If
| there are so many traffic laws that it's inevitable that
| following someone for 10 minutes would yield 1 violation,
| in what sense do we really have any 4A protection while on
| the road?
| 8note wrote:
| For 2, isn't that some weird logistics? You have to bring
| them to court, convict them, then you can search the
| vehicle?
| tstrimple wrote:
| > 2: they can't just assert a traffic violation, there has
| to be an actual violation of the law.
|
| How's that working out in practice?
| [deleted]
| pessimizer wrote:
| Scalia was a bad person. But to diminish what he did stand up
| for essentially dismisses the court entirely, since everyone
| else was worse.
| hammock wrote:
| >Scalia wrote a few pro privacy decisions, but Scalia is in
| no way the "defender of the 4th amendment"
|
| He never said Scalia was perfect. He implied that he was our
| last hope
| modriano wrote:
| Even if that was his point, it's wrong. Breyer
| (interestingly, Breyer was mugged and robbed at least
| twice) and Ginsburg often sided with the conservatives in
| voting to invade our privacy, but Kagan and Sotomayor are
| pretty reliable defenders of privacy, and from the
| arguments I've listened to so far from this term, I'm
| confident KBJ holds even stronger pro-privacy 4A views than
| Kagan and Sotomayor. And even with Breyer and Ginsburg
| voting against privacy somewhat regularly, in the biggest
| 4A case of the past few years, Carpenter v US [0], Breyer,
| Ginsburg, Kagan, Sotomayor, and CJ Roberts voted that the
| 4A protects individuals against warrantless searches of
| cell-site records (ie the cell tower records that include
| frequent pings of every cell phone using that tower).
|
| So even if that was OPs point, it's wrong.
|
| [0] https://www.oyez.org/cases/2017/16-402
| pyuser583 wrote:
| What makes his dissent in Lawrence a "rancid screed?"
|
| Was it not well thought out? Filled with hateful language and
| stereotypes?
| modriano wrote:
| I don't know how to answer if it's "well thought out". It
| certainly consistent with his mission of enabling
| conservatives to use the law to enforce morality, as
| exemplified in section IV,
|
| """I turn now to the ground on which the Court squarely
| rests its holding: the contention that there is no rational
| basis for the law here under attack. This proposition is so
| out of accord with our jurisprudence--indeed, with the
| jurisprudence of any society we know--that it requires
| little discussion.
|
| The Texas statute undeniably seeks to further the belief of
| its citizens that certain forms of sexual behavior are
| "immoral and unacceptable," Bowers, supra, at 196--the same
| interest furthered by criminal laws against fornication,
| bigamy, adultery, adult incest, bestiality, and obscenity.
| Bowers held that this was a legitimate state interest. The
| Court today reaches the opposite conclusion. The Texas
| statute, it says, "furthers no legitimate state interest
| which can justify its intrusion into the personal and
| private life of the individual," ante, at 18 (emphasis
| addded). The Court embraces instead JUSTICE STEVENS'
| declaration in his Bowers dissent, that "the fact that the
| governing majority in a State has traditionally viewed a
| particular practice as immoral is not a sufficient reason
| for upholding a law prohibiting the practice," ante, at 17.
| This effectively decrees the end of all morals legislation.
| If, as the Court asserts, the promotion of majoritarian
| sexual morality is not even a legitimate state interest,
| none of the above-mentioned laws can survive rational-basis
| review.""" [0]
|
| I'd say it's fairly hateful to compare consensual
| homosexual sex to bestiality (which cannot be consensual
| and thus is always rape).
|
| He also spends a lot of time freaking out about the idea
| that if the Court forbids states from criminalizing
| homosexuality, it would logically follow that homosexuals
| are just people and would also be entitled to marriage
| equality. And he makes it clear how much he is afraid and
| repulsed by the idea of homosexuals getting the right to
| marriage equality.
|
| """Let me be clear that I have nothing against homosexuals,
| or any other group, promoting their agenda through normal
| democratic means. Social perceptions of sexual and other
| morality change over time, and every group has the right to
| persuade its fellow citizens that its view of such matters
| is the best. That homosexuals have achieved some success in
| that enterprise is attested to by the fact that Texas is
| one of the few remaining States that criminalize private,
| consensual homosexual acts. But persuading one's fellow
| citizens is one thing, and imposing one's views in absence
| of democratic majority will is something else. I would no
| more require a State to criminalize homosexual acts--or,
| for that matter, display any moral disapprobation of them--
| than I would forbid it to do so. What Texas has chosen to
| do is well within the range of traditional democratic
| action, and its hand should not be stayed through the
| invention of a brand-new "constitutional right" by a Court
| that is impatient of democratic change. It is indeed true
| that "later generations can see that laws once thought
| necessary and proper in fact serve only to oppress," ante,
| at 18; and when that happens, later generations can repeal
| those laws. But it is the premise of our system that those
| judgments are to be made by the people, and not imposed by
| a governing caste that knows best.
|
| One of the benefits of leaving regulation of this matter to
| the people rather than to the courts is that the people,
| unlike judges, need not carry things to their logical
| conclusion. The people may feel that their disapprobation
| of homosexual conduct is strong enough to disallow
| homosexual marriage, but not strong enough to criminalize
| private homosexual acts--and may legislate accordingly. The
| Court today pretends that it possesses a similar freedom of
| action, so that that we need not fear judicial imposition
| of homosexual marriage, as has recently occurred in Canada
| (in a decision that the Canadian Government has chosen not
| to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario
| Ct.App.); Cohen, Dozens in Canada Follow Gay Couple's Lead,
| Washington Post, June 12, 2003, p. A25. At the end of its
| opinion--after having laid waste the foundations of our
| rational-basis jurisprudence--the Court says that the
| present case "does not involve whether the government must
| give formal recognition to any relationship that homosexual
| persons seek to enter." Ante, at 17. Do not believe it.
| More illuminating than this bald, unreasoned disclaimer is
| the progression of thought displayed by an earlier passage
| in the Court's opinion, which notes the constitutional
| protections afforded to "personal decisions relating to
| marriage, procreation, contraception, family relationships,
| child rearing, and education," and then declares that
| "[p]ersons in a homosexual relationship may seek autonomy
| for these purposes, just as heterosexual persons do." Ante,
| at 13 (emphasis added). Today's opinion dismantles the
| structure of constitutional law that has permitted a
| distinction to be made between heterosexual and homosexual
| unions, insofar as formal recognition in marriage is
| concerned. If moral disapprobation of homosexual conduct is
| "no legitimate state interest" for purposes of proscribing
| that conduct, ante, at 18; and if, as the Court coos
| (casting aside all pretense of neutrality), "[w]hen
| sexuality finds overt expression in intimate conduct with
| another person, the conduct can be but one element in a
| personal bond that is more enduring," ante, at 6; what
| justification could there possibly be for denying the
| benefits of marriage to homosexual couples exercising
| "[t]he liberty protected by the Constitution," ibid.?
| Surely not the encouragement of procreation, since the
| sterile and the elderly are allowed to marry. This case
| "does not involve" the issue of homosexual marriage only if
| one entertains the belief that principle and logic have
| nothing to do with the decisions of this Court. Many will
| hope that, as the Court comfortingly assures us, this is
| so.""" [1]
|
| [0]
| https://supreme.justia.com/cases/federal/us/539/558/#599
|
| [1]
| https://supreme.justia.com/cases/federal/us/539/558/#604
| [deleted]
| ghoward wrote:
| I really hope SCOTUS smacks down the cops; "right of the people
| to be secure in their persons, houses, papers, and effects,
| against unreasonable searches and seizures" is pretty clear, and
| it doesn't matter that the Fourth Amendment was written in a time
| without electronics.
|
| Also, this should apply to manual police surveillance of homes as
| well: there should be a warrant.
| rychco wrote:
| The current SCOTUS? Respecting your rights? I wouldn't count on
| it, friend.
| koolba wrote:
| They did a great job respecting the right to bear arms.
| pstuart wrote:
| This case was about somebody selling illegal drugs (and
| firearms but only skimmed).
|
| The War on Drugs has legitimized excessive policing to an
| insane degree (only eclipsed by the War on Terror).
|
| People continue to support this because "drugs are bad,
| m'kay?", which can be true, but doesn't warrant this madness.
| The US should have learned its lesson with alcohol prohibition
| but apparently too many people profit off the current scheme
| for it to meaningfully change.
|
| We could collectively remedy this promptly if enough of the
| population recognized and demanded that the better path is
| education, regulation, and taxation.
| cwillu wrote:
| Sounds like the lesson was learned quite well.
| pstuart wrote:
| I get the snark, but no, it hasn't.
| modriano wrote:
| Imagine you have a largish property (say 5 acres) and you had a
| greenhouse that was not visible from any adjacent public land,
| and police suspect you're growing some marijuana in that
| greenhouse. Would it be unreasonable for cops to get a
| helicopter, fly high enough to see over the things hiding the
| greenhouse, claim they saw marijuana from a distance of over
| 400 feet with just their eyes, and used that as probable cause
| to then get a search warrant for the property? In Florida v
| Riley, "The Court held that Riley had no reasonable expectation
| of privacy in this case because anyone could view Riley's
| property from a helicopter flying in navigable airspace and
| figure out what was inside. The police officer did not enter
| Riley's land or interfere with it in any way. Furthermore, the
| manner in which he was flying the helicopter was well within
| the law; therefore, the police officer was within his rights to
| view Riley's property from the air. The Court determined that
| the police action in this case did not violate Riley's Fourth
| Amendment rights." [0]
|
| That case was in 1988, and it is not out of line with the 4th
| Amendment decisions over the ~50+ years since the Warren court
| that made good 4A decisions (like Katz vs US [1]). So expect
| this case to fly through 6 to 3.
|
| [0] https://www.oyez.org/cases/1988/87-764
|
| [1] https://www.oyez.org/cases/1967/35
| alex_young wrote:
| Interestingly however, if they use infrared imaging they
| can't do so without a warrant. See
| https://en.m.wikipedia.org/wiki/Kyllo_v._United_States
| scarface74 wrote:
| >... you're growing some marijuana in that greenhouse
|
| Your entire argument is based on the flawed premise that
| government should have any right to stop you from growing,
| selling or consuming marijuana.
| ch4s3 wrote:
| Yes. The whole drug war is antithetical to the spirit and
| original intent of the 4th and I firmly believe the court
| decided these cases incorrectly. Imagine extending this
| ridiculous helicopter analogy to satellites of increasing
| capability. Where would there ever be any expectation of
| privacy? Must we all cling together in lead lined boxes
| underground?
| xahrepap wrote:
| Or wifi that can see through walls. Etc etc.
|
| It's to the point where we need a new amendment to bolster
| the 4th in the modern era.
|
| Not saying we SHOULD need one. Because I agree the spirit
| (and honestly the letter) of the 4th covers us. But clearly
| bad actors are winning the fight right now.
| ch4s3 wrote:
| This is what always killed me about the "liberal" judges,
| so many of them are TERRIBLE on the 4th.
| matthewdgreen wrote:
| This should be one of the places where conservative
| "originalist" judicial philosophy shines: after all, that
| entire philosophy is designed to constrain government
| power based on what was reasonable and expected in the
| 1700s. You'd imagine that one could use this approach to
| protect citizens from government adoption of modern
| surveillance technology (which is capable of "searches"
| that track a user's electronic records, among other
| things.)
|
| Surprisingly, that's not at all what we've seen. For
| example in Carpenter vs. United States, the Supreme Court
| was asked whether tracking someone via cell-transaction
| records required a warrant under the 4th amendment. Chief
| Justice Roberts and the Court's liberal justices said
| "yes, it is a violation because citizens should have a
| reasonable expectation of privacy in their movements."
| Meanwhile the most prominent originalists (Thomas,
| Gorsuch as well as Alito) filed dissenting opinions
| lamenting the decision, saying that the 4th amendment
| doesn't provide any protection for these records.
|
| Anyway ordinarily I wouldn't respond to a political rant,
| but I do think it's important for HN readers to know what
| the most important judges in the country are actually
| saying on this point.
| wcunning wrote:
| Gorsuch's dissent read to me as: refile this case with
| the following complete legal theory that would provide
| 10x as much protection as the majority's decision. He
| clearly didn't like the use of the cellphone records,
| just didn't want to rule the way the majority ruled with
| so many outs for the cops given how little effort it
| takes to get a warrant these days.
| krapp wrote:
| The originalist interpretation of Thomas, Gorsuch and
| Alito seems correct to me. The 4th Amendment refers to
| "The right of the people to be secure in their persons,
| houses, papers, and effects, against unreasonable
| searches and seizures." Cellphone records do not belong
| to the person who owns the cellphone generating that
| data, nor are they _papers_ or _effects_ in the way the
| Amendment was meant to refer, nor an intrusion onto a
| person 's private property, therefore the Amendment
| shouldn't apply.
|
| Also, as of now SCOTUS has decided a right to privacy
| doesn't exist within the Constitution. They were willing
| to get rid of that in order to overturn Roe V. Wade.
|
| The problem with wanting an originalist interpretation of
| the Constitution is that the Constitution doesn't really
| say what most people think it does.
| ch4s3 wrote:
| Cell records seem like "papers" to me. Just because this
| case isn't specifically outlined in the text doesn't mean
| that power is automatically granted to the government
| without a warrant.
| krapp wrote:
| >Cell records seem like "papers" to me.
|
| But would they seem like papers to someone in the 1700s?
| "Papers" in that context are physical documents,
| parchment and ink.
|
| That's the problem with Constitutional originalism - it
| boils down to interpreting the mind of an imaginary
| ghost, which fundamentally leads to justifying
| confirmation bias by proxy.
| [deleted]
| ch4s3 wrote:
| I totally agree. The originalists haven't made a very
| strong intellectual showing on the 4th.
| [deleted]
| mcbits wrote:
| I suspect the 4th amendment would have been worded somewhat
| differently if the royal tax collectors in Boston had been
| clever enough to train tea-sniffing dogs to search cargo
| for tea smuggling without physically searching inside.
| modriano wrote:
| I must confess, I wasn't really presenting a hypothetical,
| even if I initially presented it that way. I was just
| presenting the facts of the case Florida v Riley [0], which
| the Supreme Court considered and then decided individuals
| don't have a reasonable expectation of privacy in locations
| that can be viewed by a helicopter just outside the bounds
| of your property. So unless the court completely changes
| direction on decades of consist (anti-privacy) 4A
| interpretation, the SC will absolutely rule that it's fine
| for a geosynchronous satellite to just watch any particular
| target 24/7, when it becomes economically possible for an
| investigation to employ such tools.
|
| [0] https://www.oyez.org/cases/1988/87-764
| ch4s3 wrote:
| I got your intent and I've read a lot about the Riley
| case. The courts have completely destroyed the 4th
| amendment, its terrible.
| Amezarak wrote:
| Technology destroyed the Fourth Amendment. If the
| government couldn't fly the helicopter themselves, they
| would just buy the data, as they already do your
| cellphone location data, car tag scan data, credit card
| purchase histories, etc.
|
| It's going to be clearly silly for most people to say
| that multibillion dollar corporations are allowed to
| conduct unlimited surveillance on you, but the government
| can't. The 4A was encoding a legal right to the
| _societal_ expectation of privacy. We 've spent the last
| 30 years blithely destroying that social expectation via
| tech. Of course no one much is up in arms in it now -
| we've trained it out. Big Data and the Fourth Amendment
| are antitheses. Even if you were to somehow rile up
| enough people to force some sort of legislation against
| stuff like this, it's going to happen anyway, illegally,
| and they'll find a way to get away with it. Consider the
| myriad abuses of the CIA and NSA. What happened when the
| CIA spied on Congress illegally as Congress investigated
| their other illegal actions, and then got caught, then
| lied about what they were doing? Absolutely nothing, and
| the guy in charge is now considered a hero by a whole
| political faction and is a frequent media commentator
| expounding his opinions as a Trustworthy Expert.
|
| In a world where you're dealing with human beings, you
| can't have giant repositories of extremely useful data in
| centralized locations and think that a "don't look at
| this" sign is going to do you any good. You have to not
| have giant centralized repositories of data people care
| about. The Fourth Amendment could only effectively exist
| in a world where privacy was valued and invading it meant
| breaking into someone's home, or his lawyer's office, or
| paying people to follow him around all day.
| at_a_remove wrote:
| I think one of the biggest flaws was the use of the word
| "expectations." Call it a sea change, call it a paradigm
| shift or a shove on the Overton window, _expectations_
| have been changing. Technology can certainly kick that
| along and often opens new chinks in our armor, but there
| 's a societal and therefore legal bent to it, too.
| newZWhoDis wrote:
| Yep. Most of the federal government is unconstitutional
| and the courts allowed it.
| JumpCrisscross wrote:
| > _Imagine extending this ridiculous helicopter analogy to
| satellites of increasing capability_
|
| An originalist analogy would be the government spotting
| something with their naked eye from a boat that isn't
| visible from land. I don't think that would be
| unconstitutional. If someone in a helicopter is using their
| naked eye to look at your one property, that seems to be in
| a different category from _e.g._ thermal imaging everyone
| from space.
| ch4s3 wrote:
| This isn't a very good argument. A naked eye assessment
| from water is no different than from land. You won't see
| over walls or between land features, you also can't go
| within 400 ft of any arbitrary point in a piece of
| property from the water. Furthermore the 400 ft rule is
| totally arbitrary, and enforcing it relies entirely on
| the word of the police who are 100% incentivized to lie
| about both altitude and use of "the naked eye". The whole
| think stinks of authoritarianism.
| JumpCrisscross wrote:
| > _the 400 ft rule is totally arbitrary, and enforcing it
| relies entirely on the word of the police_
|
| I mean, any distance is going to be arbitrary. And
| "people might lie" is a bad reason to reject a rule.
| (It's a good reason to raise the burden of evidence.)
| ch4s3 wrote:
| The decision set no burden for evidence, and the dissents
| specifically pointed out that no reasonable civilian
| pilot would be flying so low. The court invented this
| shit whole cloth to justify the drug war fashion of the
| day, it's horrifying overreach.
|
| Imagine saying out loud with a straight face that it's
| not a search because you're in the sky.
| JumpCrisscross wrote:
| > _decision set no burden for evidence_
|
| Defence didn't allege the cops lied. This case wasn't
| about lying cops.
|
| > _no reasonable civilian pilot would be flying so low_
|
| This argument has merit. That said, civilians don't
| slowly patrol neighbourhoods either. So I'm not sure
| where the threshold is for what cops can do on patrol.
| ghoward wrote:
| I think you're right about the end result, and I do not like
| it. I also disagree with the Riley case: unless you have
| REALLY good binoculars, there isn't any way someone could
| tell what kind of plants are in a greenhouse at 400 feet.
| mkl95 wrote:
| It's a known fact that cops struggle to distinguish hemp
| from marijuana. If they can't do it when it's in front of
| their faces, there's no way they will at 400 feet.
| aerostable_slug wrote:
| Even better: outdoor grows have been located via their
| heat signature at night (I have a relative who was a
| national guard pilot and did this). There's no way to
| know what's there, just that it's a different temp than
| the native greenery. Generally this is done on public /
| state land, but I imagine more than one raid on private
| land was cued by this technique.
| dehrmann wrote:
| They're literally the same species. You might still need
| a license to produce hemp, so they could plausibly
| consult the license list, notice your cannabis, see
| you're not on the list, and get a warrant either way.
| jjulius wrote:
| This is mostly tongue-in-cheek, but:
|
| >... to be secure _in_ their... houses...
|
| The cameras are outside, so teeeeeechnically...
| ghoward wrote:
| I presume you are being tongue-in-cheek, and I agree, so it
| will probably be ruled for the cops.
|
| But why would police treat a peeping tom differently when
| they do the same thing? It's so hypocritical.
| krapp wrote:
| > But why would police treat a peeping tom differently when
| they do the same thing? It's so hypocritical.
|
| For the same reason that, when the police restrain you
| against your will and lock you in a cage, it's an arrest,
| but if you do it, it's assault and kidnapping.
| bialpio wrote:
| Yeah, but they need to follow some procedures to lock you
| up, so similarly they probably should have to follow some
| procedures (like getting a warrant) before surveiling you
| for extended period?
| scarface74 wrote:
| They are _suppose_ to follow some procedures.
| bialpio wrote:
| I'd hope they _do_ follow some procedures. The problem
| that those procedures may be lax / subjective / easy to
| work around is a whole other matter...
| scarface74 wrote:
| Also see "rubber hose cryptanalysis"
| scarface74 wrote:
| Actually it's not...
|
| https://www.cnn.com/2021/11/10/us/citizens-arrest-what-
| is-ex...
|
| Citizen's arrest was actually outlawed in GA because of
| what happened there by the very conservative state
| legislation and signed into law by the Republican
| governor.
| cnelsenmilt wrote:
| It can still be assault and kidnapping when the police do
| it, if they don't have a good reason and follow the
| rules. Same applies to surveillance. The question is not
| cops vs. non-cops: it's what the valid reasons and rules
| for the cops are.
| pdntspa wrote:
| It is still assault and kidnapping, just legally
| sanctioned, and for some reason we feel compelled to call
| it an "arrest". Just because its LEO performing the
| assault doesn't make it any less of an assault.
| paulryanrogers wrote:
| Police have a monopoly on violence. Which requires
| holding them to a higher standard. The 4th amendment
| means the courts should err on the side of privacy, not
| surveillance.
| theknocker wrote:
| anonu wrote:
| To me, this is akin to capturing of cellphone meta data. It
| should not be admissible in court without a warrant at the time
| it was collected.
| rasz wrote:
| I fully expect it to end at: Yes, except congressmen and judges,
| because safety blabla
|
| hand in hand https://edition.cnn.com/2022/06/14/politics/house-
| vote-supre...
| [deleted]
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