But the concept that electronic records are considered part of a person's "papers and effects" has already been ruled by some courts.
Nope. They don't. On a bad day you're just wondering why you're on a no-fly list and how to get off.
Not less bad. Bad in a different way.
In fact, the response to Hurricane Katrina was by far the largest--and fastest-rescue effort in U.S. history, with nearly 100,000 emergency personnel arriving on the scene within three days of the storm's landfall.
The federal government has almost nothing to do with emergency response. It's idiotic to even suggest they should be involved. Local authorities need to have plans and prepare for such events like Florida does. As a last resort the feds show up when it's an unmitigated disaster. Katrina was a category 1 when it made landfall, New Orleans was completely unprepared. Money for levees, flood walls and other precautions was funneled by local politicians to casinos and other local business projects.
In other news people got kidnapped, locked up and tortured based only on suspicion and without any kind of trial.
Unless the government has compromised nearly every software and hardware vendor in the world... at which point you couldn't even trust the devices you're using to connect. The fundamental problem here is the strength of the governing bodies constitution and the the respect it has for that constitution. If you have, as we do today, a government that considers the constitution to be an outdated stumbling block rather than the backbone of a free society that it is, no amount of security or encryption will save you. They have unlimited time, money and people. They will always win.
"The point is the type of 'records' doesn't matter except in very very specific cases. If it's held by a 3rd party, you don't have grounds to invoke the 4th Amendment."
I disagree about whether that is "the point". I think the court is missing "the whole point" of the 4th Amendment. Remember that generally speaking, it is not the letter of the law that is important, but what the authors of the law meant when they wrote it.
There are a couple of things that are pretty clear about this, given the realities of the day: (1) that this kind of electronic record is, for all intents and purposes, equivalent to "the papers and effects" envisioned when the 4th Amendment was written; and (2) these are essential parts of many people's daily lives without which they cannot function normally in society, not something you are "voluntarily" turning over to a 3rd party.
The spirit of the law says this court was wrong. In fact this is precisely the kind of information that the 4th Amendment was created to protect.
"The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it." -- James Wilson
"Its like sticking a group of children in a room full of knives and blaming the children when someone gets hurt."
I disagree completely. These were supposedly responsible news organizations. So what it was really like was sticking a group of adults in a room full of knives, and blaming those adults when someone gets hurt.
If you loan someone a dangerous object... say you loan someone your rifle because they want to go hunting, or because Grandma is coming over and she is a little crazy and you don't want the gun in the house... and that person then goes out and shoots somebody with your gun, YOU are not responsible. Either legally or morally.
A news media organization messed up. And it wasn't deliberate, it was an accident. But they were adults, and should have known better.
"While the ruling is troubling on a number of levels the concept itself is fine. "
There is another aspect to it that is being ignored here, and by the court as well.
Other courts (I don't have a specific citation at hand, but it's been in the news) have ruled that while collecting specific data may not be a search, aggregating data over time can constitute surveillance or a search subject to 4th Amendment protection.
I think it is pretty clear that cell phone location data is aggregated over time, and can reveal things about one's life that even a direct search (or police "tail") might not do. So it seems pretty obvious to me that this kind of data is covered by that precedent, but this court ignored that.
"After all, they need the location data for billing purposes."
I would argue over whether they even need this much... to a degree anyway.
On a typical plan, all they need to know is: "Is it 'native', or roaming?" and "Is it long distance, or local?"
Because most plans only distinguish between home area and roaming, and long distance or local. And some unlimited plans do not even do that. Further, most cell plans don't even distinguish between local and long distance anymore, as long as it is within the U.S.
So the location data in most cases can be broadened to simply "Were they in their home coverage area?" Which, for many providers, is a rather large percentage of the U.S.
Yes, the nature of cell phones does require fairly specific location data at the time of call. But there is no user-specific need to retain those records.
Your post is ironic given that this article is about the public policing itself. I wouldn't be surprised if civil litigation came out of this. We'll see.
The one time someone said to me: "I'm placing you under citizens arrest"
My reply was "Go fuck yourself"
and when the police showed up, it wasn't me that got carted off to jail.
People need to learn about their rights.
To see a need and wait to be asked, is to already refuse.