The Process Of Laying The Very First Transatlantic Cable

Has The Fourth Amendment Been Dismantled By Technology And The Courts?

from the getting-there dept

Fri, Jan 28th 2011 6:26pm — Mike Masnick

Michael Scott points us to a fascinating book chapter by Christopher Slobogin, in which he discusses how the courts have effectively stripped away the Fourth Amendment in a technological era by effectively saying that "virtual" technology-based searches don't fall under the Fourth Amendment and, thus, do not need the same sort of oversight. This is, as he notes, a problem and he argues that it's time to bring those types of searches back under the umbrella of the Fourth Amendment:

Most virtual searches are not Fourth Amendment searches or, if they are, they can usually be carried out on little or no suspicion if they do not involve interception of communication content. Given the huge amount of information that virtual searches provide about everyone's activities and transactions, traditional physical searches--with their cumbersome warrant and probable cause requirements--are much less necessary than they used to be. American citizens may eventually live, and indeed may already be living, in a world where the Fourth Amendment as currently construed is irrelevant to most law enforcement investigations. Technological developments have exposed the fact that the courts' view of the Fourth Amendment threatens the entire edifice of search and seizure law.

The paper suggests some principles for bringing such searches back under the purview of the 4th Amendment -- something that law enforcement and the government would almost certainly fight. However, it does make a really strong case for why such searches do deserve 4th Amendment protections. Between mistakes and abuse, there's a reason why the founding fathers wanted to make sure that there was probable cause before the government invaded your privacy. Why should that change when things are digital?

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Filed Under: courts, fourth amendment, privacy, regulations

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Rose M. Welch (profile), 28 Jan 2011 @ 6:12pm

...it's time to bring [technology based] searches back under the umbrella of the Fourth Amendment...

This. OMG, this.
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Anonymous Coward, 28 Jan 2011 @ 6:45pm

Well, your house is private property, so for them to physically come to your house and search your hard drive should require a warrant.

Your ISP is private property, so for them to physically come into your ISP and search its data should require a warrant.

The website providers that you visit are hosted on private property, so the same principle applies here too.

Though one may argue that making the providers hand over a copy of the data that it has is not the same thing as physically entering private property and taking physical property. I still think it should require a warrant.

Maybe the wiring in transit that are on public property, though I still think tapping that should require a warrant.
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Anonymous Coward, 28 Jan 2011 @ 7:09pm

Re:
The Fourth Amendment applies whether you are on your own property or not. You do not loose your Fourth Amendment protections when you step out your front door, although some judges are trying to reinterpret it that way.
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ChurchHatesTucker (profile), 28 Jan 2011 @ 7:10pm

Re:
Your ISP is private property, so for them to physically come into your ISP and search its data should require a warrant.

It should, but unlike your home the person responsible for securing it isn't usually the same as the person depending upon the security. Few people are as keen to fight for other people's rights as they are for their own..
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Anonymous Coward, 28 Jan 2011 @ 7:43pm

The issue at hand is "What is the internet"? Is it a public place, or is it a private place? In a world where people fill facebook with personal pictures, tweet their emotions, foursquare their meals, and myspace everything else, it is pretty hard to suggest that there is very much expectation of privacy in a any of it.

In fact, by the very nature of the internet, in order to connect to something, we must tell it about ourselves, at least a bit. At bare minimum, we must reveal our IP address, in order to make both ends of the connection. Usually we also provide basic things like operating system, browser, and so on in order to get a proper response.

An ISP shouldn't have any more or any less protection than your phone company. The standards to obtain a warrant for phone records is fairly low, and phone companies often will provide the information without actually needing a warrant, as they know one can be easily obtained.

My feeling is that any improvement on fourth amendment rights should also be raised with stricter requirements for IP logging and access from ISPs. They should be able to turn over customer information in a short period of time, rather than taking weeks to turn over very few records. My feeling is if you are going to address the issues, things should be addressed on all sides.
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Anonymous Coward, 28 Jan 2011 @ 8:21pm

Why would the government ever want to bring that under the 4th amendment? They have exactly what they want the ability to take personal information from anyone whenever they want. Its like fricken heaven to them.
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CSMcDonald (profile), 28 Jan 2011 @ 10:05pm

The war on drugs has been eroding the 4th amendment for almost 30 years now. The war on terror has further eroded it. Now the war on cybercrime will make it even more meaningless I'm sure.
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Anonymous Coward, 28 Jan 2011 @ 10:28pm

Fourth Amendment or not - companies like AT&T just hand over information as requested.

Forget there ever was a constitution - America is owned by corporations and run by idiots. Get out while you can.
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Christopher (profile), 29 Jan 2011 @ 12:11am

Re:
It's both. It's a public and private place, where the same rules that are in public (you cannot follow someone for days without being accused of stalking, even if you are the police, without a warrant) for the protection of private citizens still apply.
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Christopher (profile), 29 Jan 2011 @ 12:12am

Re:
Actually, the war on drugs hasn't eroded the 4th Amendment at all from what I have seen. The 'war on terror'? Yeah, that has eroded it big time, to the point where the government just has to say "TERRORISM!" and judges are more than willing to throw out their brains and allow anything in most cases.
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Anonymous Coward, 29 Jan 2011 @ 4:44am

How important is the Fourth-Amendment?

Just ask ex-President Hosni Mubarak.
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cc (profile), 29 Jan 2011 @ 4:59am

Re:
I would argue that my emails stored on a remote server contain much more sensitive information than my phone records, and I certainly expect the former to have much better legal protection than the latter. "Cloud computing" makes things even more complicated.

Similarly, the degree of surveillance on the internet can be much higher than on the phone, because of the nature of the medium and because my movements and actions are/can be logged in much greater detail.
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btrussell (profile), 29 Jan 2011 @ 5:54am

Re:
"In a world where people fill facebook with personal pictures, tweet their emotions, foursquare their meals, and myspace everything else, it is pretty hard to suggest that there is very much expectation of privacy in a any of it."

Just because you and/or others do so, does not mean that I or everyone does so.

You've got my name, find a pic of me on the net.
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NullOp, 29 Jan 2011 @ 6:03am

4th Amendment
Hey folks, this is what is going to happen to the entire Constitution and Bill of Rights. The unstated goal of our current government is "to provide a strong government program to address the nations problems and concerns". What sounds like a great idea is actually Socialism! If you listened to Obama's SOTU address all he did was say "We're great" and "We have a solution". Unfortunately the solution is Socialism. Vote him out!!!!!!!!!!!
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Pixelation, 29 Jan 2011 @ 6:13am

"In a world where people fill facebook with personal pictures, tweet their emotions, foursquare their meals, and myspace everything else, it is pretty hard to suggest that there is very much expectation of privacy in a any of it."

Interesting you say that as "Anonymous Coward".
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Anonymous Coward, 29 Jan 2011 @ 6:15am

Re: Re:
First guess:
http://btrussell-fishingthroughlife.blogspot.com/

Second guess:
http://www.myspace.com/btrussell

Third choice has you as a school teacher in allentown, which I don't think. Are you related to the fedora project?
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Rose M. Welch (profile), 29 Jan 2011 @ 6:52am

Re: Re:
Are you forgetting about roadblock-type searches, where they stop everyone and search them and their vehicles for no reason? :)
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Rose M. Welch (profile), 29 Jan 2011 @ 6:54am

Re: 4th Amendment
Obama started our socialistic public roads, schools, libraries, fire and police services, utilities, welfare, hospitals,, and so on?

Wow, he's really gotten alot done. I'm impressed.

Man, I thought that the actual framers of the Constitution did some of those things, but hey, of course I'll believe you, random Internet guy. :)
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cgt (profile), 29 Jan 2011 @ 8:28am

This is why people need to start caring about privacy (stop using Google!) and encrypt their files/connections.

http://www.truecrypt.org :)
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Anonymous Coward, 29 Jan 2011 @ 8:33am

Re: 4th Amendment
Were this crazy people come from?
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average_joe (profile), 29 Jan 2011 @ 9:32am

Re: Re:
It's both. It's a public and private place, where the same rules that are in public (you cannot follow someone for days without being accused of stalking, even if you are the police, without a warrant) for the protection of private citizens still apply.

That is not true. The police can follow you for days on end without a warrant, and it's not stalking.
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average_joe (profile), 29 Jan 2011 @ 9:37am

Re: Re:
I would argue that my emails stored on a remote server contain much more sensitive information than my phone records, and I certainly expect the former to have much better legal protection than the latter. "Cloud computing" makes things even more complicated.

Of course your emails are more sensitive, that's why they receive more protection than your phone records.
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average_joe (profile), 29 Jan 2011 @ 9:53am

Re: Re: Re:
Are you forgetting about roadblock-type searches, where they stop everyone and search them and their vehicles for no reason? :)

That is simply untrue. Checkpoints do not work that way, nor could they. I think you're buying the 4th Amendment FUD hook, line, and sinker.
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bigpicture, 29 Jan 2011 @ 10:04am

Expectation of Privacy
I'm not an American citizen but I do agree with the principles of the Fourth Amendment. But the issue is if you are doing something in a public place is it reasonable to have expectations of privacy? If you are behaving badly in the town square and someone makes a film of you and puts it on YouTube what should your expectation of recourse be?

The with respect to privacy internet is no different than the town square, so what you apply to one should be applied to the other. So if I am carrying a briefcase of secret documents through the town square and someone mugs me and takes and publicly posts the secret documents, that is a whole different thing. They should probably try and draw parallels between the real and "virtual" worlds when applying/revamping the Fourth
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Not an electronic Rodent, 29 Jan 2011 @ 10:15am

Re: Expectation of Privacy
They should probably try and draw parallels between the real and "virtual" worlds when applying/revamping the Fourth
I'd say that's exactly what they shouldn't do because it's analogy and analogy only stretches so far. The problem with the internet is that it's both the town square and the whispered conversation your own basement. It's also the 1 billion seat stadium gig, the corner shop, the department store, your living room, your office... and so on.

What you need to do is define the limits of privacy (preferably erring towards the greatest amount of privacy compatible with actually forming a coherent society) and then think on a case by case basis how those limits apply to a particular situation on- or off-line
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Hephaestus (profile), 29 Jan 2011 @ 11:29am

Re: Re:
"Few people are as keen to fight for other people's rights as they are for their own.."

So just encrypt everything, use VPN's, and be done with it. If they get any data they won't be able to read it.
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Rose M. Welch (profile), 29 Jan 2011 @ 12:20pm

Re: Expectation of Privacy
If you are behaving badly in the town square and someone makes a film of you and puts it on YouTube what should your expectation of recourse be?

None. You have no expectation of privacy in a public area, except with regards to your person or vehicle. As an example, anyone can record you, but no one can force you to turn out your pockets without a warrant.

The with respect to privacy internet is no different than the town square, so what you apply to one should be applied to the other.

No, the Internet is much more like a telephone line than a town square, and your telephone communications are private.

So if I am carrying a briefcase of secret documents through the town square and someone mugs me and takes and publicly posts the secret documents, that is a whole different thing.

A 'whole different thing' than what?

They should probably try and draw parallels between the real and "virtual" worlds when applying/revamping the Fourth

Or not, because the Fourth doesn't need revamping.

Laws regarding our privacy from the government need to be revamped, because of the Fourth Amendment, which is sort of the opposite of what you said.
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Rose M. Welch (profile), 29 Jan 2011 @ 12:44pm

Re: Re: Re: Re:
That is simply untrue.

What state do you live in, AJ? We have those in Oklahoma at least once a year (generally around New Year's), and I hear about them in Texas more frequently than that.

Checkpoints do not work that way, nor could they.

Really? You're saying that it's physically impossible for this to happen??? Seriously?

I think you're buying the 4th Amendment FUD hook, line, and sinker.

I think you've gone the opposite direction, AJ. Roadblock searches happen frequently and have been challenged frequently, with judgments going in both directions.

But, hey, it's America. You're welcome to disbelieve in these searches, along with the existence of puppies and Germany, if that's what you want.
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average_joe (profile), 29 Jan 2011 @ 12:51pm

Re: Re: Re: Re: Re:
Roadblock searches are for "no reason"? Now that would violate the 4th Amendment.
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average_joe (profile), 29 Jan 2011 @ 1:13pm

Re: Re: Re: Re: Re:
And just to be clear, Rose, do you mean roadblocks, like where they're looking for an escaped convict, or do you mean checkpoints, like they might set up on New Year's Eve? Either one may be constitutional, and I have time, I'd be happy to point you to Supreme Court language to that effect.
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Anonymous Coward, 29 Jan 2011 @ 1:18pm

Re:
At best, getting data from a phone company would be like requesting which sites you visited. Phone companies do not record your conversations and turn them over to the authorities. OTOH ISPs keep all data and activities/files (conversation) is essentially recorded.

Can you say wiretap warrant?
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ViperPete (profile), 29 Jan 2011 @ 1:59pm

Re: Re: Expectation of Privacy
Precisely.

When I send a person to person/persons email, text, instant message or even a social network message, I see it no different than a phone call or postal letter and expect it to be considered as such.

When I post on a publicly viewable message board, forum, unsecured social network page or webpage, I see it no different than posting fliers on telephone poles, putting the info on a billboard, publishing in a book/magazine or shouting it from a soapbox in the town square and would expect to be held to similar public/governmental scrutiny as such.

It is all a question on who the recognized recipients for the message media type are. Internet or not, person to person communications and person to public communications seem pretty self-evident, the former should always fall under 4th amendment, wiretap and police access to postal mail and the latter should always be considered as part of the public discourse and public record.

To those who say that everything I do in public is valid for other parties or governmental record, I say: If I am running around naked and acting like a nut, I agree; but, if I have my hand in my pocket in public, it is no-ones right to know whether I am jingling my keys or my change and only if I am determined to be a threat/violator of some sort and have had proper due process does the government have the right to force me to show them.
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Rose M. Welch (profile), 29 Jan 2011 @ 2:06pm

Re: Re: Re: Re: Re: Re:
In this case, no reason = probable cause. I mean, if everyone on the road is swerving or has a busted headlight, then sure, pull everyone over.

But that's not the case with these searches, AJ.
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average_joe (profile), 29 Jan 2011 @ 2:07pm

Re: Re: Re: Re: Re: Re:
Here's some Supreme Court caselaw for you. These cases I'm quoting are all good law. I'm not sure what cases you're referring to when you say there are "judgments going in both directions." None of those judgments could supersede the Supreme Court.

While capricious, random stops are not allowed, roadblock stops in general are fine according to the Court:

Accordingly, we hold that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment. This holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative. We hold only that persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers. The judgment below is affirmed.
Delaware v. Prouse, 440 U.S. 648 (1979)

Suspicionless sobriety checkpoints are allowed under the Court's holding in Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990):

At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers� authority, and he is much less likely to be frightened or annoyed by the intrusion . . . . Here, checkpoints are selected pursuant to the guidelines, and uniformed police officers stop every approaching vehicle. The intrusion resulting from the brief stop at the sobriety checkpoint is for constitutional purposes indistinguishable from the checkpoint stops we upheld in Martinez-Fuerte.

Martinez-Fuerte was a suspicionless border patrol checkpoints away-from-the-border case, in case you're wondering

Suspicionless checkpoints for narcotics are NOT allowed, though roadblocks to capture a terrorist or dangerous criminal would be allowed, under City of Indianapolis v. Edmond, 531 U.S. 32 (2000):

The primary purpose of the Indianapolis narcotics checkpoints is in the end to advance "the general interest in crime control," Prouse, 440 U.S., at 659, n. 18. We decline to suspend the usual requirement of individualized suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes. We cannot sanction stops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime.

Of course, there are circumstances that may justify a law enforcement checkpoint where the primary purpose would otherwise, but for some emergency, relate to ordinary crime control. For example, as the Court of Appeals noted, the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route. See 183 F.3d, at 662-663. The exigencies created by these scenarios are far removed from the circumstances under which authorities might simply stop cars as a matter of course to see if there just happens to be a felon leaving the jurisdiction. While we do not limit the purposes that may justify a checkpoint program to any rigid set of categories, we decline to approve a program whose primary purpose is ultimately indistinguishable from the general interest in crime control.

And a police checkpoint to ask motorists about a recent hit-and-run was upheld by the Court in Illinois v. Lidster, 540 U.S. 419 (2004):

We now consider the reasonableness of the checkpoint stop before us in light of the
factors just mentioned. We hold that the stop was constitutional.

The relevant public concern was grave. Police were investigating a crime that had
resulted in a human death. No one denies the police's need to obtain more information at that
time. And the stop's objective was to help find the perpetrator of a specific and known crime, not
of unknown crimes of a general sort. Cf. Edmond, supra, at 44, 121 S.Ct. 447.

The stop advanced this grave public concern to a significant degree. The police
appropriately tailored their checkpoint stops to fit important criminal investigatory needs. The
stops took place about one week after the hit-and-run accident, on the same highway near the
location of the accident, and at about the same time of night. And police used the stops to obtain
information from drivers, some of whom might well have been in the vicinity of the crime at the
time it occurred.

Most importantly, the stops interfered only minimally with liberty of the sort the Fourth
Amendment seeks to protect. Viewed objectively, each stop required only a brief wait in line-a
very few minutes at most. Contact with the police lasted only a few seconds. Police contact
consisted simply of a request for information and the distribution of a flyer. Cf. Martinez-Fuerte,
supra, at 546 (upholding inquiry as to motorists' citizenship and immigration status); Sitz, supra,
at 447, 110 S.Ct. 2481 (upholding examination of all drivers for signs of intoxication). Viewed
subjectively, the contact provided little reason for anxiety or alarm. The police stopped all
vehicles systematically. And there is no allegation here that the police acted in a discriminatory
or otherwise unlawful manner while questioning motorists during stops.

For these reasons we conclude that the checkpoint stop was constitutional.

Fourth Amendment doctrine is one of my favs...
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Rose M. Welch (profile), 29 Jan 2011 @ 2:13pm

Re: Re: Re: Re: Re: Re:
"...and I have time, I'd be happy to point you to Supreme Court language to that effect."

Whew! That was the point of my statement flying over your head.

My response to Chris was about legal actions that infringe on our Constitutional rights, not about illegal actions that infringe on our Constitutional rights. In other words, I stated that it was an infringement, not that it was illegal.

I'm aware of the cases that reference this issue, but I'm also aware that most of them acknowledge the very same Constitutional infringement that I mentioned, with the caveat that the infringement is less important than the state's interest in these matters.
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Rose M. Welch (profile), 29 Jan 2011 @ 2:18pm

Re: Re: Re: Re: Re: Re: Re:
You were posting while I was typing, lol.

None of those judgments could supersede the Supreme Court.

In addition to my comment below (which explains that I wasn't commenting on the legality of the infringement), I'd like to add that something like a dozen states have laws that specifically prohibit roadblock-type searches.
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average_joe (profile), 29 Jan 2011 @ 2:57pm

Re: Re: Re: Re: Re: Re: Re:
Gotcha.
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btrussell (profile), 29 Jan 2011 @ 3:10pm

Re: Re: Re:
Both guess' wrong!

No!
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Mr Big Content, 29 Jan 2011 @ 3:12pm

Just So Long As They Don�t Take Away The Second Amendment...
... ultimately, that�s the only one that matters. As long as we have that, they can�t take our freedom away from us.
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velox (profile), 29 Jan 2011 @ 4:09pm

Re: Re: Re:
I'm just curious AJ:
You say the police can follow you for days and it's "not stalking".

Wouldn't it be more accurate to say that the police can stalk someone for days and not be violating the law?

After all, what exactly is the definition of the word stalking"?
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average_joe (profile), 29 Jan 2011 @ 4:24pm

Re: Re: Re: Re:
I would only use the word stalking when referring to illegal conduct, not permissible conduct. From the context of the statement I was replying to, I took it he meant impermissible stalking.
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average_joe (profile), 29 Jan 2011 @ 4:30pm

Re:
This is why people need to start caring about privacy (stop using Google!) and encrypt their files/connections.

http://www.truecrypt.org :)

I do love truecrypt. I use it on all of my computers and thumbdrives.
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Anonymous Coward, 29 Jan 2011 @ 7:14pm

Re: Re: Re: Re:
That is simply untrue. Checkpoints do not work that way, nor could they.

Huh? They sure do. I've been through a few of them myself.

I think you're buying the 4th Amendment FUD hook, line, and sinker.

It seems to me that you're the one trying to feed folks some bull.
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Anonymous Coward, 29 Jan 2011 @ 7:18pm

Re: Re: Re: Re: Re: Re: Re:
While capricious, random stops are not allowed, roadblock stops in general are fine according to the Court:

Which pretty much contradicts what you said previously. Thanks for going ahead and proving *yourself* wrong.
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Anonymous Coward, 29 Jan 2011 @ 7:35pm

Re: Re:
I do love truecrypt. I use it on all of my computers and thumbdrives.

You should try DiskCryptor. It's true open source (GPL, not just "disclosed source" with a proprietary license like Truecrypt") and has much tighter code. DiskCryptor even had system disk encryption before Truecrypt. Plus, they don't don't kick people off their forums for mentioning other programs, like the Truecrypt Nazis do.

The thing that DiskCryptor doesn't have is "containers" for virtual drives. It only encrypts existing volumes.
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Rose M. Welch (profile), 29 Jan 2011 @ 8:32pm

Re: Just So Long As They Don�t Take Away The Second Amendment...
What??? How can you overlook the Third Amendment like that?

Clearly, the Third Amendment is the only one that matters.
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Anonymous Coward, 29 Jan 2011 @ 8:57pm

Re: Just So Long As They Don�t Take Away The Second Amendment...
Too late. There's no way some domestic group could resist the US military on the basis of arms. The gap between what ordinary citizens are allowed and what the government has is just too great.
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TheBigH (profile), 29 Jan 2011 @ 11:27pm

Re: Re: Just So Long As They Don�t Take Away The Second Amendment...
That is probably true in terms of pure material and technological resources, access to weaponry, etc. But I think if America ever had a government corrupt and evil enough for the people to rise up in armed revolution, and the government tried to get the military to open fire on the citizens... well, I think it would go very badly indeed for the government.
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Thomas (profile), 30 Jan 2011 @ 6:06am

Government wlll do..
whatever they want to do. Constitutional protections are something for the government to get around, not pay attention to. Congress has no problem passing laws that clearly violate the constitution; I suspect that lots of members of Congress don't even know what the constitution says anyway.

Even with the protections in place, nothing will stop the spooks and cops from ignoring them.
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average_joe (profile), 30 Jan 2011 @ 6:36am

Re: Re: Re: Re: Re: Re: Re: Re:
Which pretty much contradicts what you said previously. Thanks for going ahead and proving *yourself* wrong.

I don't think I contradicted myself at all. Random checkpoints/roadblocks for "no reason" are not allowed.
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average_joe (profile), 30 Jan 2011 @ 6:38am

Re: Re: Re: Re: Re:
Huh? They sure do. I've been through a few of them myself.

You've been through checkpoints that were set up for no reason? I doubt it.
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btrussell (profile), 30 Jan 2011 @ 7:16am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
You people don't have spot checks to check for seatbelts and drinking and driving?

There is no probable cause. Just checking to see if you are breaking the law.
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average_joe (profile), 30 Jan 2011 @ 7:42am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
You people don't have spot checks to check for seatbelts and drinking and driving?

There is no probable cause. Just checking to see if you are breaking the law.

Under the 4th Amendment, searches don't have to be based on probable cause. They only need to be reasonable.
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btrussell (profile), 30 Jan 2011 @ 9:11am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
So just doing a random check, anywhere, out of the blue, to see if you are breaking any laws, is reasonable?

Or do you not have those spot checks I mentioned?
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The Real Zano, 30 Jan 2011 @ 9:33am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Crazy how people see "roadblocks based on a reason that is true on every road at every moment in time" as "roadblocks for no reason".
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average_joe (profile), 30 Jan 2011 @ 9:37am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
So just doing a random check, anywhere, out of the blue, to see if you are breaking any laws, is reasonable?

Or do you not have those spot checks I mentioned?

The cops can't just pull anyone over for no reason to check if the driver is breaking any laws. That would be unreasonable. The cops can set up roadblocks/checkpoints where they check every car, but only for certain types of searches. The caselaw I quoted above lays out some of the contours of what they can do at these spot checks. For example, they can look for drunk drivers, but they can't look for trunks full of narcotics without any particularized reason to do so. They can look for bombs in your trunk if they're investigating a plausible tip that someone on that highway has a bomb in their trunk, but they can't make drivers get out of their cars and turn out their pockets without good cause. The idea is that at roadblocks/checkpoints, every car is treated the same. All the cops can do is ask questions, look in the drivers' eyes to see if they're bloodshot, check for proper paperwork, etc. They can't just pull people out of their cars, frisk them, and go through the car unless they have good reason.
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Anonymous Coward, 30 Jan 2011 @ 10:10am

Re: Re:
What criminal activity are you hiding!?!?

/sarc
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bigpicture, 30 Jan 2011 @ 10:14am

Re: Re: Expectation of Privacy
We have privacy laws here where I am, they work just fine. You don't see any mass ISP address reveals here without due process. You don't see multi-million dollar awards against citizens for $20.00 worth of songs. But in the USA the Constitution is being subverted daily to suit the interests of big business and lobbyists and not the citizens. Any you know what, they call that democracy and try to sell it here. So why don't you dissect that out of context like a USA lawyer on the Constitution, and tell me this is not the way it is. Either you have a Constitution that is "for the People by the People" or you don't. You decide if you want to let the Corporate lawyers take that away from you.
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average_joe (profile), 30 Jan 2011 @ 10:44am

Re: Re: Re:
What criminal activity are you hiding!?!?

/sarc

You'll never know. :)
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bigpicture, 30 Jan 2011 @ 11:15am

Criminal?
File sharing is not a criminal activity, neither is exposing the workings of government for that matter. But when Corporations and the Government can make it so, then your Constitution is in peril. Not "for the People by the People", but "for Special Interests by Special Interests". Privacy protection is for the Citizens who are not doing anything wrong, but not for the "doings" of Government and Corporations. They tend to mix up privacy of "doings" with privacy of "information".
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Jim (profile), 30 Jan 2011 @ 11:19am

Distrust
As a government employee I don't understand the motivation of other government employees/agencies when they allow or promote this type of government.

My job is to protect the environment and public health of the people I serve. How creating a distrusting atmosphere will help me do that is beyond me. Do I need regulations to do my job? Of course. Are there going to be people that won't do the right thing and legal action is needed? Unfortunately yes, but my training and education is to reach out and educate and train first. I can't do that if I the public is thinking I have some other motive than what I was hired to do. These continual assaults on all of our rights do not help. And it scares the hell out of me.
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bigpicture, 30 Jan 2011 @ 11:34am

Re: Distrust
My comment was not about the ordinary Government employees trying to discharge their duties and do their job. The comment was more about the elected officials who make the Laws, and don't always embrace the Greater Good, but lean toward the benefit of "Special Interests". For instance that DMCA law is about "Corporate Interests" and does not even serve the good of Artists, Writers, and especially not the Public. My understanding of the Constitution was that it was intended as a guideline to govern the affairs between citizen and citizen, and between citizen and Government. Since when did Corporations assume the same rights as living breathing, voting citizens.
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Chris in Utah (profile), 30 Jan 2011 @ 11:54am

Examples in Reality
Taking your blood to file it away @ Florida checkpoints

Worried about radiation at airports try the street

Good news; we can fight back!

My favorite because the pastor was acquitted and it has video

Somebody asked me why I have infowars as my link. Things like this is why.
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Anonymous Coward, 30 Jan 2011 @ 1:02pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
I don't think I contradicted myself at all. Random checkpoints/roadblocks for "no reason" are not allowed.

Now you're being ridiculous. I think what was meant was "no good reason". Of course there's always *some* reason, even if it's just "because we felt like it". Yeah, I see how that works.
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Anonymous Coward, 30 Jan 2011 @ 1:04pm

Re: Re: Re: Re: Re: Re:
You've been through checkpoints that were set up for no reason? I doubt it.

No justifiable reason.
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Anonymous Coward, 30 Jan 2011 @ 1:09pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Under the 4th Amendment, searches don't have to be based on probable cause. They only need to be reasonable.

The Supreme Court disagrees with you.
http://en.wikipedia.org/wiki/Probable_cause
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Anonymous Coward, 30 Jan 2011 @ 1:16pm

Re: Distrust
These continual assaults on all of our rights do not help. And it scares the hell out of me.

Think of the government as a human body. You're the liver trying to tell the head of an alcoholic body to quit getting drunk because it's hard on you. Unfortunately, you're not the one in charge. The head will keep getting drunk even if it kills you.
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Anonymous Coward, 30 Jan 2011 @ 1:22pm

Re: Re: Distrust
Since when did Corporations assume the same rights as living breathing, voting citizens.

Since corporate interests took over the government(particularly, the Supreme Court). http://en.wikipedia.org/wiki/Corporate_personhood
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average_joe (profile), 30 Jan 2011 @ 1:33pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Now you're being ridiculous. I think what was meant was "no good reason". Of course there's always *some* reason, even if it's just "because we felt like it". Yeah, I see how that works.

But it can't just for be any good reason. If you read the caselaw I cited above, the Court points out that the checkpoints can't be to discover "unknown crimes of the general sort." "Because we felt like it" is not an option, not if the checkpoints are going to be upheld as reasonable by the courts.
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Anonymous Coward, 30 Jan 2011 @ 1:36pm

Re: Re: Re: Just So Long As They Don�t Take Away The Second Amendment...
...the government tried to get the military to open fire on the citizens... well, I think it would go very badly indeed for the government.

heh
Kent State shootings
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average_joe (profile), 30 Jan 2011 @ 1:36pm

Re: Re: Re: Re: Re: Re: Re:
No justifiable reason.

According to whom? You? Do you consider sobriety checkpoints on nights when evidence shows there are more drunk drivers, like on New Year's Eve, to be reasonable? Maybe you don't, but I do, as does the Supreme Court. Of course, reasonableness is a relative term, and you're free to disagree.
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average_joe (profile), 30 Jan 2011 @ 1:46pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
The Supreme Court disagrees with you.
http://en.wikipedia.org/wiki/Probable_cause

Respectfully, I think you're confused. Read the 4th Amendment yourself:

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.

It says that people are secure from unreasonable searches. It does not say that only searches based on probable cause are reasonable. The only thing it says about probable cause is that if a warrant is issued, that warrant must be based on probable cause.

What the Court has said, and I want I think is often the confusion when talking about these things, is that in general a search is unreasonable absent probable cause or reasonable suspicion, except for in certain scenarios, like reasonable checkpoints, airport security, border stations, etc. In those scenarios, searches are allowed even though there is no probable cause. That's why TSA can "touch your junk," for example.
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average_joe (profile), 30 Jan 2011 @ 1:53pm

Re: Re: Re:
Thanks for the tip. I'll check it out.
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Anonymous Coward, 30 Jan 2011 @ 2:53pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Respectfully, I think you're confused. Read the 4th Amendment yourself:

The Supreme Court is the final arbiter of of what it means. It's really not (legally) open to your individual interpretation.

It says that people are secure from unreasonable searches. It does not say that only searches based on probable cause are reasonable.

If the Supreme Court says that probable cause is needed for a search to be reasonable, then so it is (legally). If you want to argue that, you need to take it up with the Supreme Court. Otherwise, your declarations carry little weight.
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average_joe (profile), 30 Jan 2011 @ 3:19pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
The Supreme Court is the final arbiter of of what it means. It's really not (legally) open to your individual interpretation.

I never suggested otherwise. I'm pointing you to the Amendment so you can read its plain language. The Court's interpretation is consistent with that plain language. I haven't been offering my interpretation, I've been offering the Court's opinion.

If the Supreme Court says that probable cause is needed for a search to be reasonable, then so it is (legally). If you want to argue that, you need to take it up with the Supreme Court. Otherwise, your declarations carry little weight.

The Court has not said that probable cause is needed for a search to be reasonable, as I've explained. I don't need to take anything up with the Court. What I'm telling you is their interpretation, not mine.
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Bruce Ediger (profile), 30 Jan 2011 @ 3:29pm

Re: Re: Re: Re: Re:
Ah ha! The old "The whole of morality is confined within the law" argument.

Given that "stalking" has a common, vernacular, idomatic meaning, I would have say that you're quibbling when you say stalking referring to illegal conduct. In the vernacular, the Police can certainly stalk you legally. Maybe so can anyone else.
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Bruce Ediger (profile), 30 Jan 2011 @ 3:52pm

Re: Re:
You forget the DCS-3000 (DCS-6000 now?) that's installed at each and every phone company.

I think they need a warrant to start scarfing up packets, but I'm not 100% certain, and in this day and age of NSA hoovering and "National Security Letters" who can say? Also, there's persistent rumors that phone phreaks and other dodgy characters have hacked DCS-3000 (a.k.a. "Carnivore") and used it for their own purposes. This has happened in Greece: type "The Athens Affair" into Google for a good time.
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Bruce Ediger (profile), 30 Jan 2011 @ 3:57pm

Re: Re: Re: Re: Re: Re: Re: Re:
Spoken like a true gentleman.
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Bruce Ediger (profile), 30 Jan 2011 @ 4:00pm

Re: Re: Re: Re: Re: Re: Re: Re:
Now we're getting somewhere. "When evidence shows" is now allowed in arguments? We're allowing something other than a particularly narrow legal reading? Because the latter is what I usually see you advocating. Yeah, like back in that thread on "stalking", where you wanted the word "stalking" to mean "illegal stalking" or something, and everyone else wanted it to mean the vernacular usage.

Or is it a case of "where evidence shows" when the evidence shows something that Legal Authority likes, and it's a case of "strick legality" where Legal Authority doesn't like the evidence? Like maybe in copyright law?
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Anonymous Coward, 30 Jan 2011 @ 4:17pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
The Court has not said that probable cause is needed for a search to be reasonable, as I've explained.

http://www.lectlaw.com/def2/p089.htm
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average_joe (profile), 30 Jan 2011 @ 4:18pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
You don't by chance wear a tinfoil hat, do you?
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Lawrence D'Oliveiro, 30 Jan 2011 @ 5:51pm

Re: Just So Long As They Don�t Take Away The Second Amendment...
TheBigH claimed:

... the people to rise up in armed revolution, and the government tried to get the military to open fire on the citizens... well, I think it would go very badly indeed for the government.

Waco, Texas, anybody?
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Not an electronic Rodent, 30 Jan 2011 @ 6:37pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
It says that people are secure from unreasonable searches. It does not say that only searches based on probable cause are reasonable. The only thing it says about probable cause is that if a warrant is issued, that warrant must be based on probable cause.
See that's where you lose me with this whole constitution thing. A great idea but executed badly. From everything I've read about it, it was intended to be a starting point - to be read in spirit as much as (or more than) in literal words.
You're entirely correct in that in that it does not explicitly say the only "reasonable" search is via a warrant, but to me the very fact that the two are linked in the same sentence suggests that writers intended the 2 to be linked and that a "reasonable search" should include a documented and sworn valid reason.

As to who is right I can only guess but it's always a little dissapointing to me that the constitution is held up as almost a holy document and wrangled endlessly by lawyers in nitpicky detail and semantic argument instead of reaching for the whole in intent and ideal.

Whether this is true about the brand new state of Georgia or not it sums up exactly how US law increasingly looks from outside to me - it looks like you've forgotten the ideal you started with.
Sam: In 1787, there was a sizable block of delegates who were initially opposed to the Bill of Rights. This is what a member of the Georgia delegation had to say by way of opposition; 'If we list a set of rights, some fools in the future are going to claim that people are entitled only to those rights enumerated and no others.' So the Framers knew...

Harrison: Were you just calling me a fool, Mr. Seaborn?

Sam: I wasn't calling you a fool, sir. The brand new state of Georgia was.

- West Wing Aaron Sorkin
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Christopher (profile), 30 Jan 2011 @ 10:19pm

Re: Re: Re:
Yes, it is true. My cousins work for the FBI and Maryland State Police (the one in the police just retired)..... they are the ones who say that if they wish to follow someone for ANY period, they need to justify it and get a special order from a judge in order to do so.

Many cops have been dismissed for NOT getting that judges consent beforehand.
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Bruce Ediger (profile), 31 Jan 2011 @ 4:50am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Look, I pointed out a persistent problem in how you argue. If you think that's indicative of paranoia on my part, then fine, go ahead and call me some names. This is The Internet, where all you've got is how you present yourself. You want to waste "average joe's" reputation and credibility on name calling, go right ahead.

Myself, I'd like to see you reconicle the two bases for argument that you've used. After your "hold the TSA to the law" post, I was beginning to think that maybe you actually had some kind of underpinnings for what your wrote, but now, I'm thinking you're just another "what the authorities do is Right" sort of guy, and possibly just a better quality troll.
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Joe (profile), 31 Jan 2011 @ 5:00am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
No, there is a distinction between a stop and a search. Reasonable suspicion is the standard for a stop, but probable cause is still necessary for a search (unless consent is given).
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Anonymous Coward, 31 Jan 2011 @ 7:07am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Exactly. But probably cause can be anything from a beer can in the back seat (he might be drunk) to poor answers from the driver, to anything that the officer can see through the windows of the car. The office is free to look in the windows and anything that is in plain sight can be used as probable cause.

Checkpoints (such as drunk driving checks) are generally considered legal because they apply to everyone equally. All drivers on that road are checked. Nobody is singled out for DWB or anything like that.

To be fair, it doesn't take much to pull a car over. A fast lane change, a failure to signal, a burnt out light, etc. That gets the officer to the drivers side window, and allows them to do the plain sight look over of the car (as much for their protection as anything else).
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MAC, 31 Jan 2011 @ 7:45am

Re: Re:
The war on drugs didn't erode the 4th amendment?

First, let�s get one thing perfectly clear, the authorities now have the right to seize your personal property, car, house, etc., on the suspicion of committing a crime.

Let me say that again, on the suspicion of committing a crime, not conviction.

If that is not unconstitutional then we might as well throw the whole damn constitution out.

We are no longer free, that has been stripped from us over the last half century and the war on drugs is by its very nature, is a war on the American people perpetrated by our government.

Now I'm not for dangerous drugs on our streets but remember this:

"Those who are willing to trade Freedom for security deserve neither."
Benjamin Franklin
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average_joe (profile), 31 Jan 2011 @ 8:22am

The EFF has a nice list of the different types of searches that can be done without a warrant: https://ssd.eff.org/your-computer/govt/warrantless
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average_joe (profile), 31 Jan 2011 @ 8:29am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
No, there is a distinction between a stop and a search. Reasonable suspicion is the standard for a stop, but probable cause is still necessary for a search (unless consent is given).

Sort of. Reasonable suspicion is the standard for a stop and frisk. A stop and frisk is a search under the 4th Amendment. See Terry v. Ohio, 392 U.S. 1 (1968).

Besides that, there are several other scenarios where a search is allowed even though there is no probable cause and no consent, like at the border, an airport, a fire marshal, etc.
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average_joe (profile), 31 Jan 2011 @ 8:31am

Re: Re: Re:
"Those who are willing to trade Freedom for security deserve neither."
Benjamin Franklin

I've always thought that quote is stupid. If you're not willing to trade freedom for security, you wouldn't have any security.
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average_joe (profile), 31 Jan 2011 @ 8:34am

Re: 4th Amendment
Hey folks, this is what is going to happen to the entire Constitution and Bill of Rights. The unstated goal of our current government is "to provide a strong government program to address the nations problems and concerns". What sounds like a great idea is actually Socialism! If you listened to Obama's SOTU address all he did was say "We're great" and "We have a solution". Unfortunately the solution is Socialism. Vote him out!!!!!!!!!

So why was this post censored using techdirt's built-in censorship "report" button? He is simply expressing his views. I'm really surprised techdirt allows its readers to censor each other.
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Bruce Ediger (profile), 31 Jan 2011 @ 10:19am

Re: Re: Re: Re:
Freedom *is* security, isn't it?

If I'm free to carry a toadsticker on a jet, I don't fear anyone with a box cutter.

If I'm free to videotape TSA TSO's, them I'm secure against petty abuses.

If I'm free to travel without identifying myself, I'm secure against an awful lot of governmental and corporate abuses, like that weird "residency permit" thing the PRC has.

If I'm free to "blow the whistle", I'm secure from a different set of governmental and corporate abuses.

What freedoms did you trade for your false security?
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Erin B., 31 Jan 2011 @ 11:31am

Re: Re: 4th Amendment
Because it's barely on point and not particularly lucid. Also, I don't really think it's censorship if one click allows you to see the comment.
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average_joe (profile), 31 Jan 2011 @ 11:48am

Re: Re: Re: 4th Amendment
Because it's barely on point and not particularly lucid. Also, I don't really think it's censorship if one click allows you to see the comment.

But according to techdirt, it's "censorship" when google removes certain search results from auto-completing, even though the same results show up in the search results. If that's "censorship," how is this not also "censorship"?

http://www.techdirt.com/articles/20110127/01360912852/will-googles-new-hamfisted-ce nsorship-autocomplete-raise-questions-human-meddling.shtml
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Chris in Utah (profile), 1 Feb 2011 @ 1:57pm

Re: Examples in Reality
More in current news

TSA on the ground now
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billy, 5 Apr 2011 @ 10:36am

stop commenting
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