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Feds Push For Warrantless Cell Phone Tracking
An anonymous reader writes "An article at CNET is reporting on the Obama administration's push for warrantless tracking of the location of cell phones (Verizon Wireless stores location data for one year, for instance). The Justice Department says no warrant is necessary: 'Because wireless carriers regularly generate and retain the records at issue, and because these records provide only a very general indication of a user's whereabouts at certain times in the past, the requested cell-site records do not implicate a Fourth Amendment privacy interest.'"
See EFF page http://www.eff.org/press/archives/2010/02/08, but the interesting bit is FBI testimony from page 39 in this document http://www.eff.org/files/filenode/celltracking/Filed%20Cell%20Tracking%20Brief.pdf
You are correct, as far as the federal government goes. The state governments were not similarly limited except where the Constitution says they were to be. That has always been open to interpretation by the courts, with bizarre results such as the things that explicitly refer to Congress being imputed to the states long before the things that are worded in outright "nobody can do this" terms were. Classic example: First Amendment says 'Congress' but has long been applied to the states through the Fourteenth Amendment. Second Amendment says 'shall not be infringed' by anyone, but is still up in the air.
The problem as far as the federal government goes is the commerce clause taken together with rational basis review. If Congress passes a law that says 'Whereas interstate commerce is affected by the lederhosen industry, all citizens are required to wear lederhosen on Tuesdays. Violation is a felony punishable by five years in federal pound-me-in-the-ass prison.', that's enough to say that they were exercising their power under the Interstate Commerce Clause. Rational basis review means that a court won't overturn a commerce clause-based law if there is any rational way that the law relates to interstate commerce. And that includes enforcement when the actual act had nothing to do with interstate commerce.
For instance, a federal law that fixes grain prices will result in subsistence farmers being punished for violating it. (True story.) A federal law that says machine guns affect interstate commerce can be used to punish you for building a machine gun out of scrap metal even if none of it ever crossed state lines. (True story.) There are very few exceptions where the Supreme Court (after FDR and the New Deal) has thrown out a law for overstepping the authority of Congress under the commerce clause.
Long story short: Congress is allowed to do anything it wants, because everything has some effect on interstate commerce.
Then again, Obama has little faith in the Constitution, he considers it a document of "negative liberty" (see his NPR interview) that unfortunately tells he and his government lots of stuff (like this) they aren't allowed to do.
Well, that's exactly right, the US Constitution is founded on a political concept of negative reciprocity. It's a promise of a limit of power from a government in exchange for a minimal surrender from the people.
A promise obviously broken.
My God, it's Full of Source!
OUTSIDE_IP=$(dig +short my.ip @outsideip.net)
Sure. Congress can, under the interstate commerce clause, regulate the amount of wheat you grow to feed your own chickens. Wickard v. Filburn, 317 U.S. 111 (1942).
Congress can criminalize, under the interstate commerce clause, mere possession of a machine gun that has never itself been in interstate commerce. United States v. Stewart, which the 9th Circuit was ordered by the Supreme Court to reconsider in light of Gonzales v. Raich, 545 U.S. 1 (2005), which held that Congress can criminalize marijuana that has never been in interstate commerce because locally grown cannabis changes the supply and demand for the product in the interstate trade. The 9th Circuit ended up reinstating the machine gun guy's conviction even though he built the gun from scratch without crossing state lines.
Google : "Slippery slope"
We need to avoid these circular fallacies for eroding privacy requirements, such as:
"If you don't want people to know, you shouldn't do it" or "If you want privacy, you're probably a criminal"
Or my personal favorite, "If you're not doing anything wrong, you can't get in trouble".
Bullsh. You let people start talking like that, and pretty soon we're all goose-stepping towards Auschwitz.
This erosion of rights has got to be fought tooth and nail, now. Once we go warrant-free, there's no going back.
Courts have ruled, yes, but they still have no Consitutional authority to do anything of the sort that you've highlighted above. It's an abomination that we've allowed our government to so wildly overstep its authority.
Do you have ESP?