[ceejayoz]

It is codified, in the Fourth Amendment.

> 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

Legally, the term is "particularity".

[chucksta]

https://www.aclu.org/blog/documents-aclu-case-reveal-more-de...

>The FBI's role in the process is a condition of the Federal Communication Commission's equipment authorization issued to the Harris Corporation.

The result is that members of the public, judges, and defense attorneys are denied basic information about local cops' use of invasive surveillance gear that can sweep up sensitive location data about hundreds of peoples' cell phones. For example, when we sought information about Stingrays from the Brevard County, Florida, Sheriff's Office, they cited a non-disclosure agreement with a "federal agency" as a basis for withholding all records. When the ACLU of Arizona sued the Tucson Police Department for Stingray records, an FBI agent submitted a declaration invoking the FBI nondisclosure agreement as a reason to keep information secret.

Yeah it works really well

[ceejayoz]

Stingrays are typically warrantless; a very different scenario than this case. Their very nature makes them pretty broadly scoped, too, impacting anyone in range.

(I'm of the opinion they're a Fourth Amendment violation, and quite a few court cases are winding their way through the system. Quite a few judges have already ruled against their warrantless use. https://en.wikipedia.org/wiki/Stingray_use_in_United_States_...)

[daniel-cussen]

Hey hopefully those police stingrays can jam the gangland stingrays.

[slaymaker1907]

It gets fuzzy when third parties are involved. For example, looking at security camera footage seems to require a warrant, but no warrant is generally required if the search is consensual (and most people aren't against sharing video camera footage to aid an investigation of a serious crime as long as it is practical).

This whole system really highlights a flaw in using a 200 year old document as the basis of our legal system. Pervasive surveillance in the form of video cameras, photographs, audio, and now Google search requests wasn't really a thing at the time. I suspect with the present conditions, the authors of the 4th amendment would have put in an even stronger requirement for warrants regarding data from third parties and maybe even searches generally given how non-consensual consensual searches often feel to everyday citizens. Unfortunately, I think textualism is more in vogue with the current SCOTUS.

[WillPostForFood]

If we want stronger requirements for warrants regarding data from third parties, we can just pass laws with stronger requirements. The constitution is not a barrier here. Even if had been written 25 years ago it wouldn't have predicted the data dystopia we are in now.

[ceejayoz]

> we can just pass laws with stronger requirements

And SCOTUS can knock them down, or make them irrelevant via qualified immunity.

https://www.reuters.com/investigates/special-report/usa-poli...

"The Reuters analysis supports Sotomayor’s assertion that the Supreme Court has built qualified immunity into an often insurmountable police defense by intervening in cases mostly to favor the police. Over the past 15 years, the high court took up 12 appeals of qualified immunity decisions from police, but only three from plaintiffs, even though plaintiffs asked the court to review nearly as many cases as police did. The court’s acceptance rate for police appeals seeking immunity was three times its average acceptance rate for all appeals. For plaintiffs’ appeals, the acceptance rate was slightly below the court’s average."

"In the cases it accepts, the court nearly always decides in favor of police. The high court has also put its thumb on the scale by repeatedly tweaking the process. It has allowed police to request immunity before all evidence has been presented. And if police are denied immunity, they can appeal immediately – an option unavailable to most other litigants, who typically must wait until after a final judgment to appeal."

[coderaptor]

The Legislature is still ultimately capable of changing the law the Court rules on.

[jfengel]

The legislature is ultimately not capable of anything. Passing legislation requires enormous barriers: the House and the Senate (usually by a wide margin) and the President and not having the Supreme Court just sweep it away.

In some cases, it takes only a single Congressman to prevent a law from being passed. If the minority party is dead set a bill -- if only for political reasons -- it often requires absolute unanimity on the other party to pass it, an unreasonably high bar to pass.

Legislation is nearly always trivial. They are only barely capable of passing even the most basic, crucial, mandatory law appropriating funds for the executive branch -- and that's only possible because the filibuster does not apply to appropriations bills. Real legislation is sometimes bundled into appropriations bills precisely to piggyback on that exception.

Theoretically, the legislature can do lots of stuff. Pragmatically, you can't simply say "well, the legislature should act". There is an enormous thumb on the scale in favor of the status quo.

[ceejayoz]

And the Court can say the new law is unconstitutional on a flimsy pretext, as they’ve done with critical components of the Voting Rights Act.

[nobody9999]

>This whole system really highlights a flaw in using a 200 year old document as the basis of our legal system. Pervasive surveillance in the form of video cameras, photographs, audio, and now Google search requests wasn't really a thing at the time.

A fair point, but the controlling "document" isn't 200 years old. In fact, it's 46 years old[0] and is called the Third-Party Doctrine:

"The third-party doctrine is a United States legal doctrine that holds that people who voluntarily give information to third parties—such as banks, phone companies, internet service providers (ISPs), and e-mail servers—have "no reasonable expectation of privacy" in that information. A lack of privacy protection allows the United States government to obtain information from third parties without a legal warrant and without otherwise complying with the Fourth Amendment prohibition against search and seizure without probable cause and a judicial search warrant"

The tl;dr is that if you voluntarily give a third party (not the government and not you) information (e.g., web search requests), that information is not protected under the 4th Amendment.

As such, even though the police got a warrant, it wasn't necessary for them to do so unless Google balked at providing the information.

[0] https://en.wikipedia.org/wiki/Third-party_doctrine

[vkou]

What makes you think the fourth will be any more resilient to the 6-3 than the fourteenth, the fifth, or the first?

[ceejayoz]

Oh, nothing, but that’s kind of a different (and larger) issue.