June 8, 2013

"If people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges..."

"... to make sure that we’re abiding by the Constitution, due process, and rule of law, then we’re going to have some problems here," Obama said.

Lawprof Steve Shiffrin (at the Religious Left Law blog) says:
The problem is that federal judges ran away from the Constitution years ago on this very issue, and the President’s characterization of this program as a “modest encroachment” on privacy shows that he either lacks integrity or he has an impoverished conception of privacy....
The notion that we should trust federal judges to uphold the Fourth Amendment is impossible to take seriously.  As the Supreme Court stated in United States v. Miller, “This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” This third party principle permits the Federal Government without probable cause or even reasonable suspicion and without any notice to you: to get all of your bank records, a record of who you have sent mail to and received mail from, and who you have phoned and who phoned you...  The claim is that we have no reasonable expectation of privacy in material we have exposed to a third party like a bank, a post office, or an internet provider.  This line of reasoning is worthy of a totalitarian state.....
Another way of putting that is to say we might be able to trust the judges to follow the existing legal doctrine, but the 4th Amendment doctrine doesn't protect us as much as you might think.

48 comments:

Tim said...

"Another way of putting that is to say we might be able to trust the judges to follow the existing legal doctrine, but the 4th Amendment doctrine doesn't protect us as much as you might think"...because "we have no reasonable expectation of privacy in material we have exposed to a third party like a bank, a post office, or an internet provider. This line of reasoning is worthy of a totalitarian state."

FIFY.

Jay said...

then we’re going to have some problems here,


Well We have the problem Barack, not you. You don't care about us and since Congress and the Judiciary don't care either leaving us no remedy, I think there are going to be some nasty, unpleasant problems on the horizon...

Jay said...

to make sure that we’re abiding by the Constitution, due process, and rule of law, then we’re going to have some problems here,

Oh, and just another example of this sweeping oratory that this super-duper speaker is capable of.

Mogget said...

Why yes, yes, I do think we are going to have some problems. Gonna be very interesting to see how major financial institutions and businesses now go about protecting themselves and advertising their ability to prevent snooping. Very interesting, indeed. And if they don't, that will be interesting, as well.

Tim said...

"Oh, and just another example of this sweeping oratory that this super-duper speaker is capable of."

Another bad day for the tele-prompter?

Shit. Baracky needs to Drone that tele-prompter's ass...

Jay said...

From Justice Blackmun’s SMITH v. MARYLAND, 442 U.S. 735 (1979) opinion:


[Petitioner’s] claim that he had a “legitimate expectation of privacy” regarding the numbers he dialed on his phone … must be rejected. First, we doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must “convey” phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills. In fact, pen registers and similar devices are routinely used by telephone companies “for the purposes of checking billing operations, detecting fraud, and preventing violations of law.” [Citation omitted….] Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes. Although subjective expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret….

[E]ven if petitioner did harbor some subjective expectation that the phone numbers he dialed would remain private, this expectation is not “one that society is prepared to recognize as ‘reasonable.’” [Citation omitted.] This Court consistently has held that a person has no legitimate expectation of privacy in information he … voluntarily turns over to third parties. ...

CWJ said...

Three may keep a secret, if two of them are dead.

Simon said...

Ann Althouse said...
"Another way of putting that is to say we might be able to trust the judges to follow the existing legal doctrine, but the 4th Amendment doctrine doesn't protect us as much as you might think."

I think that's a much better way of putting it, it's a much more accurate way of putting it, but it's a much less useful way of putting it if one's intent is to attack the program and make the reader feel worried. People disagree about the scope of the fourth amendment, and the doctrine is pretty intricate. If the issue in contention is actually the fine-tuning of doctrine, that's not nearly as alarming to an intelligent reader who isn't an Am4 specialist as "the sky is falling, the sky is falling!"

Jay said...

Another bad day for the tele-prompter?

ha! for sure.

He wasn't looking or sounding that well yesterday. He was defending this massive data mining and ObamaCare.

Rose said...

Isn't it illegal to open someone else's mail?

That's the standard that should be applied to email.

The problem is less the governmental agencies, it's the Obama devotees at the IRS who decided to weaponize the IRS against Obama's doubters.

It's the notion that ALL of this 'information' is being handed over to the Orwellian-titled "Obama For America" OFA, to add to that giant database they're building.

And then, since they've proven they will use the government against those they don't like, it's not hard to see how far this can go, and how fast we slide down that slope.

Someone is risking their career, and probably their life to get all this out. In the hopes that this really is a government by the people, and that we will stop it before it culminates in whatever that person knows is coming down the pike.

I shudder to think. Because I don't think we have what it takes.

Drudge asked, a week or so ago, do we have what it takes to impeach the first black president if it is proven that he is corrupt.

Do we?

Ann Althouse said...

My point is that you don't have to mistrust judges to see that you can't rely on them to provide the level of protection you want, therefore Obama's statement that you should trust the whole thing because all 3 branches are on board is fakery. The judges making these decisions are bound to the existing doctrine, so they can be absolutely dutiful and trustworthy, but they can't do want you'd like.

Jay said...

but the 4th Amendment doctrine doesn't protect us as much as you might think.

Actually, in this area of the law, it doesn't protect you at all.

Bender said...

The entire Constitution exists because none of the branches of government can be trusted.

"We're going to have some problems here"? No shit, dumbass.

We have a lot of problems. Why the hell do you think people are so outraged?

Or did you mean that as a threat? Did you mean that in your typical condescending, passive-aggressive -- no, passive-thugish -- manner?

Sorun said...

According to this, we spend $80 billion on intelligence gathering. That pays the salaries of the people whose job it is to gather data, and who we are supposed to trust to tell us what data is important.

But they want increasingly more data specifically because it pays more salaries, not because it's useful. No one in government ever de-scopes their job. It's always a quest to increase their scope.

It would be the Administration's role to put the brakes on, if they were up to it.

Jay said...

Trust!

The National Security Agency has at times mistakenly intercepted the private email messages and phone calls of Americans who had no link to terrorism, requiring Justice Department officials to report the errors to a secret national security court and destroy the data, according to two former U.S. intelligence officials.

At least some of the phone calls and emails were pulled from among the hundreds of millions stored by telecommunications companies as part of an NSA surveillance program.


Pretending the people working at the NSA are any more special than those working at the EPA or IRS is silly.

Bender said...

The judges making these decisions are bound to the existing doctrine

????????????????????????

What the . . .

The judges making these decisions are bound to the same thing as Obama -- themselves.

The law is whatever the hell the judges say it is. Today's judiciary makes the law, it does not interpret it, much less feel bound by precedent, except when they can cite precendent to perpetuate what was gross irrational injustice to begin with or when they can twist precedent to their own ideological advantage.

The courts lost any and all credibility ages ago.

To be sure, there are many new graduates who come out of law school naively believing that judges do and will follow the law, but within a year of actually practicing, they are disabused of such foolish ideas.

Browndog said...

but the 4th Amendment doctrine doesn't protect us as much as you might think

but lawyers, judges, law professors, legal scholars, precedent, case law, living document doctrine, et.al., doesn't protect the 4th Amendment as much as you think.

Fixed it.

edutcher said...

Who you callin' WE, black man?

And, right on cue, a couple of examples of how all this "surveillance" is used:

From New Mexico, against Susana Martinez

And how they smeared Petraeus.

Yeah, we got problems, right here in River City, and the solution is spelled R-E-V-O-L-U-T-I-O-N.

Remember the people in Bolivia?

They can't trust their government, either.

Bill, Republic of Texas said...

I've decided that all these scandals are going nowhere. The Americn people are going to roll over one more time and allow the government to ger more and more powerful. It may already be too late.

I saw this based on Facebook. My liberal friends have decided that the IRS scandal is no biggie. They are hypocrites for trying to get a tax free status and they deserved what they got. Now this scandal and the liberals have gone to posting baby, cat and vacation pictures. Not a peep.

The conservatives were in an uproar about the IRS and the internet. They are still pissed about the IRS but now they seem to be rethinking the internet. They are saying well no one was listening to calls and internet bugging was aimed at foreigners and beside we need this to keep ourselves safe.

So the left and the right are reverting back to norm. Nothing will change.

Tank said...

The frog is already boiling.

DEAD COUNTRY WALKING.

I plan to get good and drunk this weekend. BBQ. Southern Rock. Yeah, pretty soon I'll be going the ST route. Maybe I'll buy a Harley.

50% paying no attention.
30% want to "get" the righties.
19% don't understand the issues.
1% upset for ten minutes, then ... see above plan.

edutcher said...

First, wait till '14 when ObamaTax tanks the economy, but, more important, last I heard, FB was sooo 2012.

This is going someplace, it's just going to take a little time to get there.

Wait for the misery index to crank up.

More to the point, who's says this is the end of anything?

Some here were saying that last week, too.

Pribek said...

"People can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure that we’re abiding by the Constitution, due process, and rule of law. We’re going to have some problems here."...that might be a better way of putting it.

gspencer said...

The very underlying thesis of a written Constitution is that the people didn't then (1787) and shouldn't now trust the created government. And history has proven this thesis correct time and again because government always takes more than authorized.

bpm4532 said...

"we're going to have some problems here"?

I guess everything up to now has been going to plan.

The Godfather said...

The war on terror is over, the President says. But the government is still spying on us, we are still being scanned at the airport, folks overseas are being droned. It makes you wonder, don't it?

Larry J said...

America was nice while it lasted. It exists in name only any more, and the judges are the most to blame for letting it happen.

Aridog said...

I said it elsewhere today ... so I repeat:

Please tell me just who, what agency, will enforce any judge's ruling, or any law, that the administration doesn't favor?

Larry J said...

America was nice while it lasted. It exists in name only any more, and the judges are the most to blame for letting it happen.

Larry J said...

America was nice while it lasted. It exists in name only any more, and the judges are the most to blame for letting it happen.

edutcher said...

Aridog said...

I said it elsewhere today ... so I repeat:

Please tell me just who, what agency, will enforce any judge's ruling, or any law, that the administration doesn't favor?


That's it - any decision he doesn't like, he ignores.

Dat's Da Chicago Way.

chrisnavin.com said...

Clearly, we need judges and elected officials that can guide us, dig around in the new behavioral economics and know what's universally true and good and attach that thinking to law and public policy.

Like a big daddy government, winning the big data race, or like a machine gently whirring away.

**Every time Obama makes a move on defense, national security, financial markets, I think of his real base, and his actual political coalitions.

I think of his past policies and what he seems to be doing, not what he says.

I don't trust what he says at all.

Inga said...

And Edutcher will direct the R.E.V.O.L.U.T.I.O.N from his armchair.

Lucien said...

No, thank you, I don't want to have to TRUST anyone. I want the government that exists only to serve the people to perform its tasks transparently, with each branch checking the excesses of the others.

Lucien said...

No, thank you, I don't want to have to TRUST anyone. I want the government that exists only to serve the people to perform its tasks transparently, with each branch checking the excesses of the others.

ricpic said...

Isn't trust a hair's breadth from hope? And didn't Obama promise us that? Hope? What a trickster that guy is...but likable, likable. There, I hope that wasn't ugly.

Hagar said...

It is futile to rail against the technology; if it exists, it is going to be used.

The problem is as in the Rosen case, that when the law said the DoJ did not have probable cause to search Rosen's phone records, the DoJ made up a false affidavit to provide probable cause, the Attorney General signed it, and the DoJ carried that around until they found a judge willing to pretend to accept it and make out a warrant.

And then the Attorney General of the United States went on public television and lamented the necessity of him and his agency perjuring himself in order to get thje warrant, and there was not even a peep of reaction to this outrageous statement.

So, who is going to prosecute?

And remember, even a special prosecutor is hired and paid through the Justice Dept.!

Eric West said...

So professor Althouse, if privacy ends at a third party, and continues to be eroded (ie our expectation is decreasing) - does this have an impact on other privacy aspects of constitutional law including doctor-patient (and abortion / contraception) or attorney client?

Lem said...

And even if we could "trust" them... there are ways around that as demonstrated by AG Holder when he went shopping for a judge that would give him the power he wanted.

kcom said...

"Pretending the people working at the NSA are any more special than those working at the EPA or IRS is silly."

And probably less so since they get absolutely no public oversight. Absolute power corrupts absolutely.

Leit Bart said...

Seconding @edutcher and @aridog -- trust must be earned and by definition, must be mutual.

Now we learn our "trustworthy" Dep't of Justice is fighting mightily to ensure we never see a judicial opinion from a FISA court which held DOJ violated Constitutional rights.

http://www.motherjones.com/politics/2013/06/justice-department-electronic-frontier-foundation-fisa-court-opinion

Trust a secret surveillance system that we can never challenge, the abuses of which are never revealed? Please.

As Rush said, "we're not all stupid out here."

virgil xenophon said...

@Tank, above.

This is why I've already laid in "mass quantities" of Barbancourt 5-Star. Luckily I bought silver back when it was $4 dollars and LOTS of gold @235/ounce. Add in survivalist bags of silver dimes for barter and I'm pretty well set. And we won't EVEN talk about the fire-power..

(All I need now is an M1A2 Abrams and lots of heavily armed drones, lol.)

virgil xenophon said...

PS to Tank:

And the day they diagnose me with terminal cancer is the day I'll start thinking about relocating the Duck Blind oppo 1600 Penn Ave., lol

bgates said...

If people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges...

I can't trust not only the one but also don't trust the others, even if Obama wants me to not can't don't trust him.

Federal judges are just an unelected group of folks anyway, aren't they? Why shouldn't I not don't can't distrust them? And last I heard from him about Congress, they were supposed to be bathing in the blood of innocent schoolchildren and drying themselves with piles of hundred dollar bills from the gun lobby. Now he's surprised I don't can't isn't wasn't lacking in distrust of those characters?

Joe said...

This is a direct consequence of ignoring the wisdom of James Madison, et al, and their concepts of federalism. There was a reason senators weren't directly elected, there was no income tax and the powers of government were both limited spread through all levels.

Politicians can't be trusted and never could be. Neither can and could judges or bureaucrats of any kind.

The unfortunate reality is that for every judge who makes wise decisions based on the rule of law and the constitution, there are many more who are stupid and stick their finger in the air and see which direction the wind is flowing. This tendency gets worse the higher in power you get for the simple reason that those in power are politicians.

Strelnikov said...

Then I guess we're going to have problems.

Bender said...

The Court lost legitimacy long ago when it opened the door, poured the gasoline, and then tossed in the match to light the Civil War with the Dred Scott decision. In the years following, more often than not it has been an obstruction to liberty, not the protector of it.

Bryan C said...

"People", in the abstract, can be trusted to expand their own power and look after their own best interests. That is all. If our government were functioning the way it was designed, with each branch opposing encroachment on their exclusive areas of authority by the others, no other level of trust would be needed. It isn't, though, so we're reduced to pretending they're our mommy and daddy and they love us.

ken in sc said...

In the 1960s, a girl in my high school class stumbled across some slips of paper in a house where she was babysitting. They said in red ink, 'The KKK is watching you.' I sent one of them to my friend in another city. After that all my mail was opened before it was delivered. I have assumed the same thing is happening now with email. There has never been any privacy.