Xeni Jardin at 8:56 am Tue, Aug 31, 2010
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Duh! The sad thing is that is news when a decision that logical comes down from the courts…
I once asked AT&T for a copy of my location records out of curiosity of how detailed they actually are. They claimed they don’t store those types of records and therefore could not help me.
Sadly, both cases will probably be overruled. For years the government’s default position regarding the interplay between technological advances and rights has essentially been “we have this capability and by god we’re going to use it”, and I don’t see that changing any time soon. They’ll obfuscate the 4th amendment issues in a cloud of anachronistic analogies (historical cell site data is like dialing a phone or addressing an envelope) and security anxieties (police will be unable to function and terrorists will win if you require a warrant). Most lower court judges will be taken in by these arguments, and those who don’t will be overruled for introducing novel theories (irrespective of the fact that existing theories fail to contemplate novel facts). The unavoidable flimsiness of analogies linking longstanding precedent to novel facts (after all, the pretense is that analogies based on decades or even centuries old terms of art encompass situations that weren’t even contemplated a few years ago) gives high court judges the intellectual and legal leeway they need to introduce their own policy preferences under the guise of a “principled” and “analytic” interpretation of the law. Regrettably, SCOTUS hasn’t exactly taken an expansive view of the 4th amendment in recent years (or even decades) and Congress is too busy fundraising and fighting culture wars to bother update the laws (and when they do, they allow themselves to be browbeaten by “national security” as defined by deep pocketed contractors and the intelligence establishment)
[As you may have gathered, I subscribe to the view that law is often indeterminate and that results are reached more as a matter of policy than analytical considerations. I reject however the frequent implication by legal academics that their own pet "analytic framework" somehow avoids this shortcoming and is determinate on principled non-policy grounds. An analytic approach can only take you so far before it devolves into the time-honored tradition of putting your words in some authority's mouth and, at this point, let us at least be candid rather than furtive about the introduction of preferences (i.e. policy-making) that occurs.]
Reason! Thank you James Orenstein!!!
It’s so refreshing to have reason represented. No politicking, no paid opinion, no PR or spin. Just a nice, reasonable decision.
It’s like a breath of fresh air…
This would be great if the 9th circuit hadn’t just decided that GPS tracking isn’t overly intrusive to privacy…
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