Major 4th Amendment ruling from the en banc CA4: The specifics of Baltimore's aerial surveillance program -- how much it showed, and how long data was retained -- collected enough information that it is a 4A search and unconstitutional. #N s3.documentcloud.org/documents/2097…
This is a strong endorsement of the mosaic theory, with the court accepting that "short term" surveillance is fine but that "long term" is not. If the judges feel the surveillance is revealing a lot of information about people, a line is crossed and the Constitution is violated.
They base their conclusion in part on an article that the plaintiffs submitted showing that if you have a view data points about where someone's phone goes, you can probably figure out who they are. (Yes, most people are at home at night.)
The court is also influenced by the ability to combine this information with other information. (Which I would think is true of all information-gathering, but so it goes.)
When combined with other databases and the tool of deductive reasoning, enough information can be obtained about people that the whole of their movements is revealed.
As I understand the court's reasoning, the ability to tie in other databases and apply deductive reasoning to the data triggers the United States Constitution, crossing from constitutional "short term" surveillance to unconstitutional "long term" surveillance.
To be clear, the court does not identify any one person who was "searched" by the program. Rather, I take it that the use of the program (with other databases. and human deductive powers) is a search of whoever it may learn movements of, which it is presumed to do.
I am kind of amazed that this sort of reasoning is in the name of the 4th Amendment, as it seems so far removed from the kind of analytical steps that you normally consider. But I guess every day is a new day in the world of the mosaic theory.
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I now have Gorsuch's book. On Aaron Swartz, he gives a remarkably one-sided view of the facts. Swartz "connected his computer to MIT's network," the book says, and "he began downloading articles from JSTOR." /1
The book then quotes his attorney as saying that what Swartz downloaded "wasn't worth anything! It was a bunch, of like, the 1942 edition of the Journal of Botany!" /2
The book then talks about how prosecutors charged him based on that, an obvious overreach for such minor conduct. Downloading a worthless botany article!
BREAKING: 5th Circuit, splitting with 4th Circuit, rules that geofencing is a search and warrants to search for geofence records are inherently unconstitutional. It may be that *all* Internet warrants are unconstitutional by this reasoning. Lordy.
#N ca5.uscourts.gov/opinions/pub/2…
I think that's an incredible result. As I read the opinion, it's too invasive to allow geofencing without a warrant, but it's too invasive to get a warrant for it, so no geofencing is ever allowed. This is bananas.
And remember the U.S. Supreme Court doesn't hear 4th Amendment cases anymore. So if the 5th Circuit doesn't review this en banc, we may have broad surveillance allowed in most of the country and no surveillance allowed in the 5th Circuit.
I'm not one to defend Trump, but I disagree w/the many claiming that Trump said there would be no more elections if he wins. I hear him more as just saying he'll do such a fantastic job he'll save the country so the stakes of future elections will be a lot lower.
Responses to this tweet are sad. As my followers know, I despise Trump, and I criticize him almost every day and have since 2015. He is an authoritarian, and he flirts with fascism; I urge you to vote against him and save America.
But that doesn't change this clip! Trump says horrible stuff every day; we don't need to pretend that every word out of his mouth is equally horrible. Don't lose the plotline, folks.
Incidentally, if you are horrified by my reaction — at the concept of actually watching the video to see what the video contains, and not just running with your tribe's chosen message — you are invited to unfollow me, or, if you don't follow me, mute or block me. I won't mind.
This viral video, and the comments to it, brings up a common misunderstanding. No, the police don't have to tell you why they're detaining or arresting you. And no, they don't have to read you Miranda rights if they arrest you. They just need probable cause. That's it.
Ok, the receipts. First, whether the police have to tell you why you're being arrested came up in a 2005 Supreme Court decision, Devenpeck v. Alford. Here's Justice Scalia writing for the 8-0 court, concluding, nope, no such requirement. tile.loc.gov/storage-servic…
Second, Miranda. There is no abstract right to Miranda warnings. Instead, SCOTUS has said that it's a violation of Miranda if an officer interrogates someone in custody, gets a statement from them, and then uses it in court against them.
This is a really wild result—a finding that, in a simulated case, federal judges don't follow the law but that law students do—but I wonder if there is an explanation the authors don't identify. 🧵 journals.sagepub.com/doi/epub/10.11…
In the hypothetical case, you are a judge on the International Criminal Court for the Former Yugoslavia (ICTY), and you are deciding a defendant’s appeal of his conviction for war crimes by the ICTY’s trial chamber.
As a judge, you have to decide if there was enough evidence that the defendant aided and abetted the war crime. You had some cases saying what the standard was (either high or low), and facts making the defendant more or less sympathetic.
It's relatively easy for law schools to create a culture that values teaching, as professors interact w/students every day & get teaching evaluations. But a common question for law professors, & especially associate deans: How can you create a culture that values scholarship? 🧵
No easy answers, but I suspect the biggest thing is by example; showing that it's valued. A few (among many) possible examples:
(1) By the Dean and Associate Dean attending the faculty workshop. Leadership being involved in the scholarly process sends a big signal of values.
(2) Having the school's website and social media accounts flag new scholarship by the faculty. Again, it's a signal of values; we think this is important.