The Importance Of Justice Sotomayor's Jones Ruling In Laying The Groundwork To Restore The 4th Amendment

from the kudos dept

Thu, Jan 2nd 2014 9:53am — Mike Masnick

Adam Sewer, over at MSNBC, recently had a great article discussing how a US Supreme Court Justice Sonia Sotomayor's concurrence in the US v. Jones case has become incredibly important in setting the framework for hopefully restoring the 4th Amendment. When the original ruling came out, there was some confusion over how significant it would be. While the court agreed that the use of GPS in that case was illegal, there were varying opinions as to why. While we initially expected that a different concurring opinion (by Alito, Ginsburg, Breyer and Kagan) would become more important, over time, people have realized that Sotomayor's concurrence clearly lays out why technological change should make us rethink past precedents concerning the collection of information. It was Sotomayor who rightly noted that there's a difference between collecting a bit of info on one person, and collecting pretty much all info on everyone. And it was Sotomayor's concurrence that is being used repeatedly to push for a rethinking of these issues:

It was Sotomayor’s lonely concurrence in U.S. v Jones, a case involving warrantless use of a GPS tracker on a suspect’s car, that the George W. Bush-appointed Judge Richard Leon relied on when he ruled that the program was likely unconstitutional last week. It was that same concurrence the White House appointed review board on surveillance policy cited when it concluded government surveillance should be scaled back.

“It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” Sotomayor wrote in 2012. “This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

While it is just a concurrence, rather than the official law of the land, the reasoning is clear and clearly is resonating, which is why it is being raised repeatedly by those looking at these new issues. Its wider inlfuence will likely boomerang back into the Supreme Court before long, where it can have a real impact towards bringing back a respect for the 4th Amendment.

“Justice Sotomayor’s concurrence in Jones was the first time a Supreme Court justice seemed to acknowledge and speak directly to that new reality,” said Catherine Crump of the ACLU, who helped write the group’s Supreme Court brief in Jones. “To have a Supreme Court Justice acknowledge that there is a difference between a few discrete pieces of information about someone and the complete records you can now gather in the era of big data made us feel like we were on the right path.”

Winkler compared Sotomayor’s concurrence in Jones to Justice Louis Brandeis’ concurrence in Whitney v. California, whose expansive interpretation of the First Amendment we now take for granted. “I think that Sotomayor’s concurrence is going to be seen much the same way,” Winkler said.

The article also quotes famed constitutional scholar Laurence Tribe (who also taught President Obama), who had complained when Sotomayor was first nominated that she is "not nearly as smart as she seems to think she is." However, now that she's been on the court for a while, Tribe has completely changed his mind and admits that he's wrong. The ruling like the one in the Jones case is part of the reason why.

“I greatly underestimated how powerful a jurist Justice Sotomayor would be. From the start, she has been an enormously impressive justice, making a major impact in cases like Jones, among many others,” Tribe wrote in an email. “I now regard her as a major force on the Court – someone who is likely to make a historic contribution – and I have no doubt that I was totally wrong in my initial expressions of doubt.”

A powerful concurrence is a good start. Now we need the rest of the Supreme Court, Congress and the executive branch to follow along...

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Filed Under: 4th amendment, privacy, sonia sotomayor, supreme court, technology, third party doctrine, us v. jones

19 Comments

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kenichi tanaka (profile), 2 Jan 2014 @ 11:17am

The problem with our government is that every American knew that spying on every single citizen in this country was WRONG. My GOD, even a THREE YEAR OLD can tell that it's wrong.

So, the liberals running our government decided that they knew better than the people and that anyone complaining about its government spying on them must be an anarchist, must be a terrorist and that they are truly NOT American.

So, imagine the irony when, after so many years of defending his own spy programs, that President Obama is suddenly realizing that Americans despise him for defending these programs in the first place.
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Coogan (profile), 2 Jan 2014 @ 11:36am

�It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,� Sotomayor wrote in 2012. �This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.�

I'm not sure what I find more incredible:
1. That this nugget of wisdom comes from a government official, or
2. That it's even considered to be some kind of life-changing "wisdom" strong enough to change a person's mind.

How we define privacy online vs offline may have to be reconsidered in the Internet Age? HOLY SHIT, BATMAN! SOMEBODY CALL DATELINE NBC!

The United State Code of Law: Running 20 Years Behind the Rest of the World.
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Anonymous Coward, 2 Jan 2014 @ 12:27pm

Re:
The issue is not one of privacy online vs. offline. It's an issue of privacy period. The advancements in technology just make 1. the efficiency of the invasion and 2 the economies of scale come into effect where the damage done is so much worse. The underlying problem, which is the same as it was when the 4th amendment was adopted, is still the same.
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cryophallion (profile), 2 Jan 2014 @ 12:27pm

A refreshing admittance
My favorite part about this post is that someone, anyone FINALLY unequivocally admitted they were wrong.

I know it's too much to expect from a government employee, but even a scholar rarely does it.

The fact that he doesn't backtrack, doesn't try to make it sound as if he meant this all along, and doesn't make excuses is exactly the right attitude. It shows integrity and engenders respect.

On the other side are all the double talkers who won't admit they are wrong. I don't trust them, never will. Now, I GET why Obama won't say anything bad about the NSA. He's scared to death of another terrorist attack during his presidency, and it impacting the way he is viewed in perpetuity. If he gives us back our rights, and something happens, he gets lambasted for not doing enough to protect us, and he has no response to that (there is one, but he wont use it). The "Not On My Watch" mentality is why the government is literally afraid to do anything real about this situation.

That's why only the courts can pull off protecting us. Only they are unelected, and aren't pandering in fear of their prestige. The Supreme court gets to answer very precise questions of law, and they are the last step in giving back our rights.

So, I'm happy to admit when Sotomayer was up for nomination, I didn't like her either.. But at least in this, she has my respect.
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Coogan (profile), 2 Jan 2014 @ 1:32pm

Re: Re:
Excuse my poor choice of terminology. When I saw "online vs offline" I really mean "online vs reality". My point is the same as yours: it's a lot easier for the government to violate a person's privacy "online" (your point 1) than is is in "the real world" (your point 2).
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Coogan (profile), 2 Jan 2014 @ 1:34pm

Re: Re: Re:
Dang it, wish this system had an Edit function.

This:

When I saw "online vs offline"...

was supposed to be this

When I say "online vs offline"
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Anonymous Coward, 2 Jan 2014 @ 1:45pm

Re: Re: Re:
The problem is that many people view it as online vs. offline and have the misguided perception that the only people who have their privacy violated online are people who put their personal information online voluntarily and therefore should expect that it will be violated without realizing how much of about their private lives is available by simply having and using a cellphone or an email address.
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Anonymous Coward, 2 Jan 2014 @ 1:47pm

It is not possible
to do any business at all without giving up personal information to a 3rd party somehow, not even paying cash is enough because you got that cash in the form of a paycheck from your employer which was most likely provided by a check cashing place or the bank itself which recorded your identity and the amount you just received. Everything you do has a 3rd party attached to it and there always was. Banks were around since the olden days... if what the government is allowed to do to the banks now was okay, then why did our founder not already build that into the constitution?

The 3rd party doctrine to justify a government snatch and grab of your data is nothing more than a wool pull.

Turns out the majority of people are stupid after all.
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John Fenderson (profile), 2 Jan 2014 @ 1:51pm

Re: It is not possible
The 3rd party doctrine to justify a government snatch and grab of your data is nothing more than a wool pull.

Agreed. The 3rd party doctrine is a scam, pure and simple, to justify unconstitutional activities.

If "3rd party doctrine" only meant what the original ruling said it meant (that a third party holding your data can voluntarily relinquish that data to the government without raising a constitution issue), it would be fine.

However, it has been interpreted as meaning that the government may compel third parties to reveal the data. That is not what the doctrine actually means. That's the scam.
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Spaceman Spiff (profile), 2 Jan 2014 @ 2:43pm

The greatest ...
The greatest members (and chief justices) of the US Supreme Court have often been belittled when they were so appointed, yet have proven themselves over time to be minds, and characters, of the highest caliber! Justice Earl Warren and others come to mind, and the very fine Jusice Thurgood Marshall as well - one who should have been a chief justice IMHO. :-)
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BeeAitch (profile), 2 Jan 2014 @ 5:34pm

Re:
...even a THREE YEAR OLD can tell that it's wrong.

TATTLETALE
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BeeAitch (profile), 2 Jan 2014 @ 5:41pm

Re: Re: Re: Re:
...and *than is is > *than it is

protip: Preview button is your friend :)
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That One Guy (profile), 2 Jan 2014 @ 8:25pm

Re:
'So, the liberals running our government decided...

You really need to take the 'liberal/conservative' blinders off, and realize that both groups and parties are responsible for this whole mess. This is not a liberal vs conservative, democrat vs republican issue, both sides have been quite happy with programs like this, and only really oppose it when they're not the ones currently in charge.
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Annonimus, 2 Jan 2014 @ 10:43pm

"A powerful concurrence is a good start. Now we need the rest of the Supreme Court, Congress and the executive branch to follow along..."

Don't worry they will follow along sooner or later by being dragged across hot embers kicking and screaming in the right direction after they tried to napalm all possible routes towards said direction.
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Clownius, 2 Jan 2014 @ 10:47pm

Re: Re:
Just look at the two times the so called patriot act went to vote.

The first time just a couple of those liberals you like to blame for everything voted against. The conservatives voted for it almost to a man. The second time a whole bunch of liberals voted against it while the conservatives still overwhelmingly supported it..

So its not a Conservative vs Liberal thing. Its down to the individual members and how much they respect the rights of the public. The answer is not many do at all.

The only real resistance to the spying state came from the very Liberals you choose to blame.

http://educate-yourself.org/cn/patriotact20012006senatevote.shtml

2001

House

For

Republican 211
Democrat 145
Independent 1

Against

Republican 3
Democrat 62
Other 1

No Vote

Republican 5
Democrat 4

2006

House

For

Republican 214
Democrat 66
Independent 0

Against

Republican 13
Democrat 124
Independent 1

No Vote
Republican 3
Democrat 11

The knowledge is at your fingertips. They want to censor the Internet for this reason . Dont let them. Use it. Know the Enemy. It doesnt always break down the way Fox News tells you. They may even claim to be you ally while silently voting to reduce your right.
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Donglebert the Needlessly Obtuse, 3 Jan 2014 @ 3:44am

Sorry to bring this up
The Supreme Court might officially state that efficiencies delivered by tech improvements have changed the situation. So associated data collection wasn't a big risk to privacy, but is now a real threat.

Could not such a recognition be transferred to the 2nd amendment? Single shot muskets = not terribly efficient. Assault weapons...erm.
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The Real Michael, 3 Jan 2014 @ 7:15am

"Adam Sewer, over at MSNBC, recently had a great article..."

Haha, that's a good one!
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VoiceOfReason, 3 Jan 2014 @ 7:22pm

Re: Sorry to bring this up
Careful. They could also use that argument against the 1st Amendment.

Of course, since they are all restrictions on the power of the federal government, it takes some really "creative" rationale to convert them into limits on the citizens from whom derives it's very existence.

Remember, the federal government only *actually* has the powers explicitly delegated to it in the Constitution.
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Gerard Pierce, 4 Mar 2014 @ 9:42pm

Re: imaginary liberals
Is this supposed to be some kind of bad joke - or are you trying to pull the strings of the conservatives? :

"So, the liberals running our government decided that they knew better than the people and that anyone complaining about its government spying on them must be an anarchist, must be a terrorist and that they are truly NOT American."

The guys running our government are hardly liberals. At best there are a half dozen members of our government who could be considered liberal and none of them have enough mojo to make it onto the Sunday talk shows.

You might reasonably accurately call some Democrats neo-liberals, but that's just another name for corporate fascists. Rahm Emmanuel is not a liberal and the DINOs he brought in to make the Democrats look like they are still a functioning party are not liberals either.

Obama is not a liberal. He can't even accurately be called a Democrat.

The guys running our country have been accurately called "the shadow government" and I think those are the guys you are talking about, but calling them liberals is a message from bizarro world.
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