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Utah Considers Warrantless Internet Subpoenas
seneces writes "The Utah State Legislature is considering a bill granting the Attorney General's Office the ability to demand customer information from Internet or cell phone companies via an administrative subpoena, with no judicial review (text of the HB150). This represents an expansion of a law passed last year, which granted that ability when 'it is suspected that a child-sex crime has been committed.' Since becoming law, last year's bill has led to more than one non-judicial request per day for subscriber information. Pete Ashdown, owner of a local ISP and 2006 candidate for the US Senate, has discussed his position and the effects of this bill."
This is a case study in why you can't pass exceptional legislation aimed at exceptional crimes. Just because a crime is particularly repugnant does not mean that we should lay down our rights to try and stop it. Don't be so lazy, find a better solution.
as justification-bait for a power grab over citizen's rights.
it's hard to see how this can possibly be legal. A warrant being issued without judicial review first? That's like an omelet without a egg.
"If you want to know what happens to you when you die, go look at some dead stuff."
Child porn will be used as a generic criticism of anyone they want to eavesdrop on, regardless of the actual investigation.
Child porn has become a root password to the legal system.
His amended bill limits the power to suspected felonies and two misdemeanors -- cyber-stalking and cyber-harassment
As always, Big Brother comes in small, fairly digestible steps. Note
the progression below:
> Last year, the Legislature granted prosecutors subpoena power
> when they suspect a child-sex crime has been committed.
Here it was one crime...of course the one, where it's really hard to
say no to such a bill. Then we continue, as is not just to be
expected but a given:
> Daw's bill initially had sought to expand the authority to any
> crime, but committee members balked at such broad power last
> Friday. His amended bill limits the power to suspected felonies
> and two misdemeanors -- cyber-stalking and cyber-harassment.
So now it's child-sex crimes + SUSPECTED felonies + 2 misdemeanors.
In a couple of years, give or take, it'll become standard-operating
procedure applying at will to *everyone*. And that, ladies and
gentlemen, is the problem with taking away basic rights from the
people. It will always get worse, because nobody wants to lose their
shiny new toys anymore that give you almost god-power over other's.
Except, of course, you're in Soviet Russia. There Big Brother
doesn't subpoena your ISP records but the actual user for, uh,
re-education. A bit more of this stuff above and we'll be there too.
Laws like this /always/ end up being subverted for lots of other purposes.
I believe that if people who were found to have subverted it were vigorously prosecuted, then eventually, law enforcement/prosecutors would quit asking for such laws in the first place.
Suppose you were an idiot. And suppose you were a member of congress. But then I repeat myself. -- Mark Twain
I'm of the mind that the issuance of an administrative warrant constitutes an act of treason.
I don't get it. Isn't Utah the home of a lot of those militant constitutional crusaders? So giving health care coverage to poor people and making people have health insurance to cut out the freeloaders in the health care system is socialism and unconstitutional, but law enforcement reviewing GPS cellphone data and their ISP logs without a warrant is all okay? You want the government out of our lives...unless it's abortion or right to die, then government intervention is okay.
How do you rationalize positions like that?
That's our life, the big wheel of shit. - The Fat Man, Blue Tango Salvage
Child sex crime is horrible.
No argument there. I have children. The mere idea indeed, horrifies me.
But I am dismayed to see such crimes being used as leverage to obtain ever more far-reaching powers.
There is no question that "all power corrupts". It's not a standard quote for nothing - it is, all too sadly, true.
I believe that no special powers are needed here - just sensible application of the ones that the already specially privileged police forces already have, is sufficient. I see no realistic problem with getting a search warrant from a judge. Like for searching a house.
Suspicion indeed - I'd like to feel the police would need a little more than suspicion - suspicion with enough basisi to convince a judge, perhaps? Isn't that what they are for, as a counterbalance to "over zealous" police forces?
After all, anybody can suspect anybody of anything - with no basis whatsoever. And I don't think that's a good basis for a law. It's more like a license to harass, I'd say. And isn't there already enough of that?
"Cats like plain crisps"
i thought judges issued subpoenas.
Utilizing the synergization of benchmark e-solutions to pre-workaround action items!
The simple fact is, all this stuff we are hearing in the news lately about what tunes governments are making ISPs dance to is solely WHAT WE ARE HEARING ABOUT.
You can be quite certain that for every event we hear about, there are ten more we don't happening behind the scenes and gathering far more data.
Everyone should consider their internet connection completely open to (at least) government scrutiny at all times. You should assume that everything that passes through your ISP is recorded and monitored by at least your ISP, and is available to any government agency at any time.
You know what the hell of it is? If someone blew the whistle that the government was steaming open everyone's mail that passed through the USPS, people would be going ape-shit.
But the fact that they monitor all electronic communications? Yawn.
A work that expires before its copyright never enters the public domain and thus enjoys eternal copyright protection.
Or we could just make a little list of the bill's supporters, and arrange for the local authorities to get anonymous tips that they're suspected of downloading child porn.
Those who do study history are doomed to stand helplessly by while everyone else repeats it.
Atty: Your honor, the suspect is a Morman Fundamentalist.
Judge: And you have proof of this?
Atty: He cliams 35 dependants on his state taxes.
Judge: Subpoena granted.
Most ignorance is vincible ignorance. We don't know because we don't want to know. --Aldous Huxley
More than one request per day, in suspicion of a child-sex crime?
There must be a lot of sick perverts in Utah.
It's obvious you do not need an understanding of history or the constitution to be a politician in Utah.
Shh.
Laws like this /always/ end up being subverted for lots of other purposes.
I believe that if people who were found to have subverted it were vigorously prosecuted, then eventually, law enforcement/prosecutors would quit asking for such laws in the first place.
So in other words, what you are saying is we should "shut the f#$k up and do what we are told."
I hope I'm mis-interpreting what you wrote.
...only believes in limited government when morality isn't a factor.
THL phish sticks
Politicians hear the words "for the good of the children" and their brains turn off.
It's better to vote for what you want and not get it than to vote for what you don't want and get it.
- E. Debs
I agree with H.L. Mencken when he said:
"The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all."
And to the AG I say get a real warrant if you suspect someone of committing a crime. If you can't prove that to a judge move on to another case.
Pete Ashdown, the guy who is speaking out against the warrantless wiretapping, is a Democrat.
But this is Utah.
Good luck with that. How many people do you think will even listen?
Mormons across the state are up in arms!
Bought the ticket, taking the ride.
Web traffic and where people go can be open to public, but the contents of emails can not.
Emails are used by companies as legal proof that communication has been made and could contain sensitive materials.
As far as where people go on the internet, is like tracking someone when they are driving their car somewhere, anyone can do it, and you should not be offended when someone sees you and says, "yeah....i saw you driving by the other day, I waved, but you didn't see me..." that is not worth controlling. As for cell phones, I consider that cell phones again are a way to communicate which could contain sensitive insider information, so no that should not have easy access without a warrant
>>>We shoulda wiped your asses out when there were only a few of you alone out in the desert.
Clearly you don't understand the concept of freedom/liberty. You may not like the Mormons, but they still have the right to live their lives however they please, within their own member state (Utah).
Also I lived in Utah for half a year - not long, but enough time to see they are not evil people. They just want to live their lives & raise families like any other American in any other member state
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
You should have to get a "driver's license" to be a politician. Seriously, a rigorous test on your first election and a refresher every two years you have to pass. What would be in it? Atrocity, horror, deceit, power-grabs, road-to-hell-with-good-intentions, and the whole other works. What people don't realize is that your opinion is stupid. So is mine. You should not be allowed to vote simply by your opinion - you should have an understanding of what you are governing. If you don't then you're no better than a monkey flipping random switches.
Shh.
http://www.faz.net/s/Rub475F682E3FC24868A8A5276D4FB916D7/Doc~E2DB28F0A1D814E61BD8AE675DE76A85F~ATpl~Ecommon~Scontent.html.
and this holds true not for criminals, but more for ordinary people..
Criminals have the means to use different mobilephones etc..
As your Government, I am in some fashion your parent, meaning you are in some fashion my child. I want to come up with new laws so I can fuck up your rights.
Therefore, by extension, ALL wiretaps are related to child sex, and therefore all wiretaps should be allowed without a warrant.
Think of the CHILDREN!
"This post contains words, known to the State of California to cause thought. Wash brain thoroughly after reading."
http://www.associatedcontent.com/article/1044817/constitution_day_review_of_laws_recently.html?cat=37
"The Sun Sentinel reported this week that a Riviera Beach law prohibiting the wearing of pants low enough to expose underwear or skin was declared unconstitutional after three young men were arrested and jailed after police spotted their boxer shorts showing above their pant waists." -- you can't give back to those men the time they spent in jail.
"Two years ago a North Carolina court struck down as an unconstitutional infringement on liberty a 201 year old law prohibiting cohabitation by unmarried couples. From 1997-2006, there had been 36 arrests for violation of the state cohabitation law, according to USA Today." -- same.
It only takes a few moments on your preferred search engine to fine plenty of other past examples of people who have served time for "violation" of laws which were later found to be unconstitutional.
A LOT of states use administrative subpoenas to get business records. It would be different if they were trying to get actual use and behavior by the customer. Subpoenas, which are less than a warrant (and a warrant less than a court order) are usually the legal process for obtaining records from a business. This is how cell phone records, account information, and hundreds of other types of documents are obtained. If you really want to bring the criminal justice system to a screeching halt, try requiring police to get in front of a judge every time they want to know who the owner of a phone number or email address is......
They had the temerity to make law enforcement agencies that use this statute write a detailed report on their behavior every year to explain themselves, but did not so much as put anything in there to provide for their prosecution by state agencies if they abuse it. This is the worst kind of transparency as it says to the public, "yes, we know there are violations of the law, we have them right here, nicely documented, but damned if we'll do anything about it."
Utah is interesting.
We have everything that the bigger cities have. Unfortunately that includes corruption. I am not going to try and slander the law enforcement community as a whole, nor the politicians, as I do not think it is warranted.
However, having witnessed first hand corruption I cannot think of any law that would stop this practice.
This whole thing of labeling everything a sex crime, leads me to believe that cointellpro has simply morphed into a form that will always merit support from politicians, families and law enforcement constituents.
I have not read the contents of the bill but I wonder if there are safeguards for us tax payers? I also question biased opinions from within the ranks those that took an oath to protect the law. A tapped internet connection can also be used as a reverse proxy which would then be subjected to the investigative authority and their best interests and/or their quota.
I understand most of Americans agree that the Constitution says certain things. But not many of us have actual read the Constitution, at least not carefully.
The Constitution does not expressly forbid something like this. And when you pull out the Bill of Rights to disprove me, read it carefully and objectively. What you'll see is that
(a) the people's right to be secure against unreasonable search and seizures is protected [although from whom is not said. Everyone agrees this includes the feds, some think it's only the feds but not the states, and most people seem to think it applies to other private individuals, which it does not but probably should.]
(b) it sets certain conditions on what is needed to justify a warrant, and requires that warrants apply to specific persons and things.
(c) it does not say when warrants must be used for a search to be reasonable. You have to know the kinds of instances that customarily required warrants at the end of the 1700s. Many kinds of searches don't require warrants: hot pursuit, administrative law searches etc. Some of these cases might be *wrong*, but they're not prohibited. It is not even explicitly prohibited to get around these restrictions by simply not using warrants, although most reasonable people would infer that.
(d) it applies to "papers" and "personal effects"; it wasn't until 1928 that SCOTUS reversed itself and began to consider a privacy interest in the information per se, not the carrier of the information. People who want to return to the state of law in the 19th Century don't realize this means giving up almost all modern legal protections for privacy.
The problems of the US Constitution with regard to privacy aren't unlike the problems with copyright in the digital era. The Constitution was drafted in an era where almost all information about a person remained with that person, and moving that information around was an exceptional situation. If he posted a letter, the physical embodiment of that letter was his property, it was one of his "papers", until it was received by the addressee.
Email or text messages don't work that way. The information is inscribed onto the carrier's property. If people knew how little Constitutional protection they have in this situation, they'd be shocked.
Stretching the Constitution to cover this takes the kind of creative constitutional exegesis that leads to Griswold v. Connecticut (birth control) and Roe v. Wade.
There's little doubt the Constitution is almost hopelessly broken with respect to 21st Century privacy concerns. We have to look to statutory law for protection.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
How do you rationalize positions like that?
"Those are my personal opinions. Yours may be different."
That's, roughly speaking, how you do it.
And you can't really say "But your opinions are wrong!". At best, you can say something like "The policies you advocate go against the constitution", and they can respond "Well, then I guess my opinion is that we should change the constitution."
You may try arguing that their suggested policy has consequences which (a) they don't know about; and (b) they don't like or agree with. I'm not sure how well it works, but at least you're attacking the problem from a decent angle.
Exactly, and just as I predicted. Child abuse and kiddie porn should be added as a clause to Godwin's law when it comes to legislative discussions: sooner or later someone is going to bring up "The Children" to defend their side of the argument.
If construction was anything like programming, an incorrectly fitted lock would bring down the entire building...
Fuck Utah, fuck all those morman fucker's and fuck the horses they rode in on.
Not that my opinion ever matters to the talking heads on tv but whenever someone uses something along the "think of the children" line (in a non-satirical way) I consider their argument lost.
Someone should pass a law enforcing that. If you use a "think of the children" argument you lose. And you get ground glass poured in your eyes.
The information is inscribed onto the carrier's property
So: if you write a letter on paper someone else paid for, not only do you magically lose your right to be secure in your effects, that someone else loses theirs, too? Every teensiest little deviation from the microscopically-narrowest-conceivable construction of the limits on the Almighty Executive Authority throws you into the realm of unbridled tyranny?
Many kinds of searches don't require warrants
Every kind of search that doesn't match exactly the microscopically-narrowest-conceivable construction of the language describing those that do explicitly require a warrant ... can be done at whim, because
We have to look to statutory law for protection.
... the government has absolute power except where a law explicitly denies it?
Every teensiest little deviation from the microscopically-narrowest-conceivable construction of the limits on the Almighty Executive Authority throws you into the realm of unbridled tyranny?
One of the main Federalist arguments against adding the Bill of Rights was that (a) it didn't say anything the Constitution didn't already imply and (b) if they bothered to state some of the consequent limits on government authority explicitly, cretinous martinets would try to argue that those were the only limits.
And here we have one, doing just that.
As always, all IMO. Insert "I think" everywhere grammatically possible.
SJW: Someone who has run out of real oppression, and has to fake it.
makes me glad I am leaving the worthless state. Don't know if the state I am moving to is any better, but it can't be any worse.
Computers are like Old Testament gods; lots of rules and no mercy.
Get off the Internet...
NOW!!!
"The Constitution does not expressly forbid something like this."
It doesn't have to, the constitution doesn't allow it either, The constitution is a list of powers that were granted to the federal government, if it's not on the list they can't do it.
The Bill of Rights is often misinterpreted as a list of all protections/rights that individuals have, when this is clearly not the case. re-read the 9th and 10th Amendments. and please do it "carefully". Continuing to spread the ill-informed and incorrect presumption that the only rights you have are the ones listed in the bill of rights is dangerous to the liberties of everyone, and it needs to be stopped.
I never said the Constitution "grants" rights to the people. That's a tired old strawman that conservatives like to trot out whenever it's pointed out that Constitution's protections of individual liberties is weaker than it ought to be.
What I said amounts to this: the Constitution fails to secure certain rights most of us take for granted.
The Ninth and Tenth Amendments are important but they don't effectively secure the basic rights of Americans even against the Federal government. There are powers the Federal government has that can be used to infringe on individual liberty. That's why the Bill of Rights was needed. If the Ninth and Tenth Amendments were enough to secure unnamed liberties, then the First through Eighth Amendments wouldn't have been necessary.
And while we are at it let's not forget the 14th Amendment. That, by the way, does limit the powers of the individual states to infringe on citizen liberties.
Now if we only had a better authoritative list, things would be better. Not exhaustive of course, but we can do a hell of a lot better than the Bill of Rights.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
So: if you write a letter on paper someone else paid for, not only do you magically lose your right to be secure in your effects, that someone else loses theirs, too?
It's not a matter of paid for, but a matter of ownership. If you inscribe a piece of private information in somebody else's diary, that diary doe snot become your personal effects.
Every teensiest little deviation from the microscopically-narrowest-conceivable construction of the limits on the Almighty Executive Authority throws you into the realm of unbridled tyranny?
I have no idea what you are talking about here. It seems to me to be an emotional tirade.
The reason for the Bill of Rights is that the powers of the Federal Government is explicitly granted in the Constitution are sufficient to infringe on what were generally agreed to be the rights Americans enjoy. Unfortunately, the Fourth is written as a limitation of a specific set of government abuses. For many years, until 1928 in fact, the courts took the Fourth Amendment literally. Now there are a whole set of legal doctrines like "substantive due process" which using the Ninth and Fourteenth Amendments as justification try to get at what the Fourth Amendment was trying to accomplish.
Why is it so hard to accept that the Bill of Rights, while generally a good idea, was less than infallibly drafted?
One of the main Federalist arguments against adding the Bill of Rights was that (a) it didn't say anything the Constitution didn't already imply
Yes, but they were wrong. The Bill of Rights says plenty that cannot be logically deduced from the Constitution.
cretinous martinets would try to argue that those were the only limits. And here we have one, doing just that.
I don't know how to respond to this. What I'm saying is that you can't just say "the Constitution protects my rights." You've got to take positive political actions if you want to secure those rights.
That makes me a "cretinous martinet"?
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
can we please expel Utah from the union?
What would be so tough about just going to the judge and getting a warrant if they had probable cause? If they don't have enough for probable cause, then why are they being allowed to make fishing trips into peoples accounts?
>>>We shoulda wiped your asses out when there were only a few of you alone out in the desert.
That is quite possibly the single most bigoted piece of flamebait that I've read in ten years on Slashdot.
The parent should go back and study up on his US history. The Missouri government *tried* to exterminate the Mormons in the 1830's and the Illinois Government essentially allowed vigilantes to try the same thing a few years later. The Missouri order wasn't rescinded until the 1970's with a formal apology from the governor.
http://en.wikipedia.org/wiki/Extermination_order
http://en.wikipedia.org/wiki/Haun's_Mill_massacre
http://en.wikipedia.org/wiki/Mormon_War_1838
The next time anyone here wants to talk even flippantly about committing genocide, they ought to take a second and ask whether the target of their vitriol hasn't already lived through somebody else's attempt at it. It's the worst kind of tasteless joke unless you think "Hitler should've finished off the Jews" is your kind of humor.
"What I said amounts to this: the Constitution fails to secure certain rights most of us take for granted."
yes it does. if a "right" ( any right ) wasn't specifically granted to the government in the list of enumerated powers, then the government doesn't have it. period. either you do, or your state does ( it's up to the states to determine this ) just because the feds tend to ignore this inconvenient fact doesn't make it untrue.
listing rights of individuals in any form would imply a limitation on those rights. This was one of the main arguments against adding the bill of rights in the first place. if anything, the bill of rights should be removed and replaced with a far more restrictive list of the powers of the feds. the most important one being a corrected, and very specific definition of what the commerce clause actually means. it certainly does not mean "anything and everything that could by some insane stretch of imagination affect any and all commerce in some slight way" which is what the feds seem to think it means.
listing rights of individuals in any form would imply a limitation on those rights.
Prove why this is necessarily true, and I will agree to everything you say.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
You are right.
A work that expires before its copyright never enters the public domain and thus enjoys eternal copyright protection.
it's already happened in courts in this country:
http://www.answers.com/topic/amendment-ix-to-the-u-s-constitution
from the first article:
"A presumption of liberty would, however, be a departure from the prevailing attitude of the Supreme Court since the New Deal. In cases such as Carolene Products Co. v. United States (1944), the Court created the opposite: a presumption of constitutionality that upholds government action unless it violates an identifiable “fundamental right.” And, since using the unenumerated right of privacy to protect abortion in Roe v. Wade (1973), the Court appeared for a considerable time to be unwilling to deem any other unenumerated liberty to be a fundamental right. In Bowers v. Hardwick (1986), for example, the Court majority belittled the idea that the liberty to engage in consensual homosexual “sodomy” was protected either in its own right or by the unenumerated right of privacy. According to Bowers, an unenumerated liberty was to be deemed fundamental only if shown to be deeply rooted in the tradition or history of the nation or implicit in the concept of ordered liberty. The more narrowly one defines the liberty in question, however, the more difficult it is to show that a particular exercise of liberty, especially a novel one, is deeply rooted in tradition. Without such a showing, a statute restricting a mere “liberty interest” would receive the benefit of the presumption of constitutionality."
-- Randy E. Barnett
( his book, mentioned in the bibliography: "Restoring the Lost Constitution" is excellent reading btw )
another good quote:
"I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?"
-- Alexander Hamilton
More than one per day? I guess the real question here is why are there so many perverts in Utah?
"Make it ten--I am only a poor corrupt official."
--Captain Louis Renault (Claude Rains), Casablanca
In Utah, and among religious conservatives in general when people talk about constitutional rights, they usually are talking about guns, and property rights. Things like the 1st, 4th and 5th amendments are for pro-molester liberal pinko commies.
Asking for rationality from religious conservative types is simply asking too much. At the very foundation of any religion is the ability of it's adherents to believe in things that are contradicted by science or history. They call it faith. Once you've trained people accept faith over reason then those people are very susceptible to all sorts of other irrational ideas. Common fallacies that are picked up by such people include things like, "if you have nothing to hide then you have nothing to fear from warrantless searches" or "keep your government hands off of my medicare."
-- QED
"You should not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harm it would cause if improperly administered."
-- Lyndon Johnson, 36th President of the U.S.
~REZ~ #43301. Who'd fake being me anyway?
Every time you give the police more powers, they immediately abuse them in every conceivable way.
Seriously, how long does it take to get a warrant? Unless somebody's life is on the line right this second, we need 'em.
It's one of the few things that protects us from the police.
I have no idea what you are talking about here. It seems to me to be an emotional tirade.
Nice attempt at misdirection --- but it seemed very clear to me, as a third party reading the conversation. Ignoring the point by labelling it ad hominem doesn't make the point go away, and I'm afraid you insult the intelligence of readers here if you think they're fooled.
cretinous martinets would try to argue that those were the only limits. And here we have one, doing just that.
I don't know how to respond to this. What I'm saying is that you can't just say "the Constitution protects my rights." You've got to take positive political actions if you want to secure those rights.
That makes me a "cretinous martinet"?
Actually, having read the whole thread, it's clear that what you were saying is that 'the Constitution is outdated and therefore doesn't apply in today's situations', and you were also clearly saying that the government has a right to do things that aren't specifically forbidden in the Constitution --- now on both of those points you're clearly already not just incorrect but very much 'lost in the forest', but apart from that, giving you the benefit of the doubt, maybe you think you're just being "pragmatic" are are just 'innocently' suggesting that practical attempts at fixing things shouldn't be based on the constitution because you think you'll get 'better' results working through other systems and via other arguments, or maybe your motives are ultimately fascist, who knows, but ultimately the moment you start on that road of 'well let's ignore the Constitution it's outdated and there are other frameworks to work in', you are *lost* --- because at that point, you've already lost the whole point, and are a downhill road where any kind of fascism is not only possible but *inevitable* over time. The Constitution is the highest law of the land, is still very much relevant. You attempt to foggy the argument by throwing in lots of little technical 'points of debate' (e.g. whether or not some right applies to state/federal or both) as if it's something very complex that mere mortals can't figure out, but really that's just an attempt to throw distractions in from the bigger picture --- because it doesn't take a genius to figure out the framers would've intended the fourth amendment be interpreted to state and local government, and that all this is very clearly laid out in the Constitution, and the framers would be turning in their graves now at this news, absolutely aghast.
I think the tide is slowly turning; people are slowly getting tired of politicians running roughshod all over the Constitution, and the chickens of the steady decades-long erosion of rights are starting to come home to roost in the form of major economic damage.
The issues are actually very simple. People you try to make them look 'very complex', and try muddy the issues, but at heart they are very simple. Just take a step back and look at the spirit of the Constitution and a lot of things become clear. Crystal-clear, in fact --- you may fool some people, but you aren't fooling everyone.
because it doesn't take a genius to figure out the framers would've intended the fourth amendment be interpreted to state and local government,
Apologies, a correction, I meant "state and federal" government, of course.
No, he’s saying something altogether different:
If abusing the search and subpoena laws resulted in jail time for dirty cops, they wouldn’t want their no-knock warrants and warrantless searches anymore.
Alexander Peter Kristopeit bought his basement from his mommy for one dollar.
You are being so obviously disingenuous in feigning an inability to see that somebody might try interpret an enumeration of individual rights as exhaustive. But come on. You *honestly* can't see that? Honestly? Really? Somehow I don't think so. I mean yeeeahhh ... nobody would *ever* conceivably misinterpret enumerations of rights as exhaustive, ever. Come the F on. You cannot really believe that. You seem to have at least a passing knowledge of law (and are perhaps a lawyer), but if so, you would know that this is one of the THE most common points of attempts at misinterpretations of ANY legal document --- that's why just about every contract has boilerplate clauses in list enumerations stating explicitly that they aren't necessarily exhaustive. Your argument is absurdly incredulous. The GP AC doesn't have to "prove" anything to you in order for his/her point to be valid, but nice try at attempting to cast doubt by attempting to artifically tack on conditions to be "proven" ... you're a sly character indeed, but I have very finely tuned BS and manipulation detectors, and logic trumps all fallacy-based attempts at manipulating arguments.
"I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?"
-- Alexander Hamilton
*sigh*
What a prophet. He’s probably rolling over in his grave right about now...
Alexander Peter Kristopeit bought his basement from his mommy for one dollar.
How in the bloody hell have most Americans not read the Constitution and presumably, the Bill of Rights?
I do not even live in America and I know it (Constitution) very well. I seriously am hoping you are joking on the matter.
I live in a country that never had the freedom, wealth and influence America has had and in some ways continues to have, and I can not believe that American citizens could possibly give up such a powerful opportunity and birthright for nothing, or nearly nothing.
It really boggles my mind how good you (Americans) have it, and I hate to see freedom being thrown away, little by little, for next to nothing.
It really breaks my heart while making me jealous of the possibilities of what you could do with what you have.
Look. You seem to think I'm taking an ideological position about what the government *should* be able to do and what the rights of a citizen under the Constitution *should* be.
I'm not.
I'm talking about what the current state of Constitutional law *says* and what the Constitution actually *is*.
There's a reason we need the Wiretap Act. It's because according to the cases brought before the Supreme Court the government can do things which most Americans regard as falling within their 4th Amendment rights, and which in *my* opinion should fall under their 9th Amendment protections.
That's just the current state of Constitutional law. *I* think the Constitution should make the Wiretap Act unnecessary, but it doesn't. If you'd actually bothered to study case law on this (which isn't all that hard for a non-lawyer) you'd realize that that is one of the most important jobs Congress has: fixing holes in the Constitution.
Actually, having read the whole thread, it's clear that what you were saying is that 'the Constitution is outdated and therefore doesn't apply in today's situations',
No, I think the Constitution, has worked and continues to work remarkably well, but it was *never* as good as it ought to have been. It *is* true that over time we keep discovering more flaws in the Constitution. Sometimes acts that were benign in the 1700s take on a different character when the government can automate surveillance of its citizens, or fly over their properties in helicopters and photographic gear.
and you were also clearly saying that the government has a right to do things that aren't specifically forbidden in the Constitution
OK, I think you must not be expressing yourself clearly. *Of course* the government is allowed to do *some* things it is not expressly forbidden to do. I should think that is a non-controversial position. To take the contrary position is to suggest that the government has no right to do things it is expressly allowed to do.
And there is the rub. It's allowed to do too much.
I'm not worried about the things it is not authorized to do, I'm worried about the things it is generally authorized to do that in specific instances should be forbidden.
It's just wishful thinking to imagine that we do not need The Electronic Communications Privacy Act.
Here's an important thing to remember: the government is allowed to suspect its citizens of crimes. It is allowed to engage in many investigative activities without a warrant. That takes on a different character when they can tail you using your electronic signature; collect data from cameras over computer networks; write programs to automate "suspecting" you of being an airline bomber.
A very clear and unequivocal statement of an individual's right to privacy would be a very good thing, and not as some seem to think logically inconsistent with the Ninth Amendment.
Unfortunately what is clear to *you* that the Constitution means has not held up in court, even, maybe even especially conservative courts that have a high degree of deference to the exercise of executive power.
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I'm not being disingenuous (although I realize you probably think I'm lying when I say that).
I fail to see how anybody can interpret such an enumeration given the presence of the Ninth Amendment. Again, if you could explain how an enumeration of rights somehow is inconsistent with the Ninth Amendment, I'm totally with you.
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Someone should pass a law enforcing that. If you use a "think of the children" argument you lose.
One where if a politician says "This law won't ever be used to do X" should the law ever be used to do X he or she will be considered "legally dead".
I doubt you know it as well as you think you do.
A few years I took a course in Information Privacy Law, and read a *lot* of case law on the 4th Amendment. The view of the courts does not at all agree with what most people seem to think it does. And if you read the holdings, you can see that's reasonable. It *doesn't*.
The bottom line is that the Constitution allows the government to do too much. We depend a great deal on statutory law in the US to restrict many of the abuses that generally fall under the enumerated powers of the Executive branch in particular, but which violate the common man's sense of what his rights should be.
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OK, so some conservative law professor thinks the Amendment IX is effectively dead. How about this:
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U.S. 497, 516-522 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
From Griswold v. Connecticut, the ruling that says government can't prevent people from using birth control.
Let me point out two things here. First, the whole argument in Griswold hinges on Amendment IX. It's trying to figure out whether contraception is a right. It seems obvious to us, maybe, but the courts can't reason that way. They have to point to evidence in the law.
Now you might take issue with this line of reasoning and say the case should have been argued from a strict construction standpoint. But then we're talking about a state law, so that wouldn't work, and the Fourteen Amendment (remember that one?) says "nor shall any State deprive any person of life, liberty, or property, without due process of law." Again, that is interpreted *broadly*, not narrowly as Barnett and Hamilton suggest is somehow inevitable.
The second point is that Griswold was decided in 1965, which is considerably later than the "New Deal". This makes Barnett's argument that there is no presumption of liberty since then sound hollow to me.
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I've lost track of the number of rights we've lost thanks to this country's so-called "war on terror".
There are enough people living in Utah that aren't Mormon that lumping Mormons and Utahns together in a giant bubble makes you look like a moron.
This isn't 1968 anymore. Though I will admit the legislature is a little behind the times.
He said there was a "prevailing attitude", not that there was no presumption at all. one counterexample does not affect his point in the least, furthermore, he provided 3 examples.
he also specifically mentions Griswold in the article, perhaps you should try reading the full article, instead of just the snippet I posted.
Er... Griswold is one of the most important landmark constitutional decisions in the last hundred years. I don't know how one measures "attitude", but Griswold is *binding* on all US courts.
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the point is that 1 single decision does not counteract a trend. especially when there are so many others that were /not/ decided with a presumption of liberty.
all the decisions that Barnett mentions are ALSO binding on all US courts. Bowers v. Hardwick is ALSO a landmark decision: ( check http://en.wikipedia.org/wiki/List_of_landmark_court_decisions_in_the_United_States )
and again, ( and for the last time ) I suggest you actually read the referenced article.
I have provided what you asked for.
Representative
Bradley M. Daw
District 60
Party R
Email: bdaw@utah.gov
Born: February 7
Spouse: Laura
Address: 842 E 280 S, OREM, UT 84097
Home Phone: Work Phone: Cell Phone: 801-850-3608
I sent him a e-mail and actually received a response. Here is the text of my e-mails and his replies with edits to remove my personal information.
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Dear Rep. Daw,
Today I was deeply offended and appalled to see the article in The Deseret News concerning HB0150. This bill is a clear violation of a citizen's Fourth Amendment right to due process. American citizens should not be subjected to warrant-less searches, and that is exactly what HB0150 does. The law first passed last year was restricted to child-sex crimes, now you want to change it to be restricted to felonies, e-stalking and e-harassment (both are misdemeanors).
What is next, warrant-less searches for supporters of your political opposition? Warrant-less searches of non-Mormons? Can you not see how this law can be abused and the very slippery slope you are on? I thought that republicans were suposed to be opposed to this sort of big government intrusion?
I urge you to reconsider your support for this bill, both on a moral and constitutional grounds.
Thank you,
K
Ogden, UT
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K,
Citizens are not being subjected to warrantless searches. Citizens aren't being searched at all. All that the subpoena can do is request a phone company or internet service provider to supply the name and address of the account owner of a phone number or IP address. The bill narrowly defines what information can be requested of the business and requires that any subpoena issued has to be put on file with the Commission for Criminal and Juvenile Justice for later review. This is no slippery slope but is, I believe, an appropriate response to anonymity afforded criminals who use the internet and cell phones to commit crime.
Brad Daw
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Rep. Daw,
First, I do honestly appreciate that you took the time to reply to me in such a timely manner. When I sent this e-mail I honestly did not expect it to even reach your eyes. Thank you.
Now, I must respectfully disagree about this not being a slippery slope. First the law was restricted to one of the worst crimes possible, child-sex crimes. Now you are broadening the law to all felonies and two misdemeanors. Originally you wanted this bill to encompass all crimes. If this bill gets passed then it would be a simple matter for someone to come by next year and amend the law to broaden the it more.
Also, I consider my personal information to be part of me. I consider obtaining this information, including bank records, without judicial review or my consent, to be a violation of my privacy.
Thank you again for taking the time to read my e-mail and reply to me. Now, I must again urge your to reconsider your support of this bill.
-
K,
Bank records is a misreport in the Tribune. The bill allows the AG to obtain the method of payment to the provider, not bank records. Let me walk you through the safeguards that are in place.
1. Very limited scope of what can be requested on the subpoena.
2. At least three people in the AGs office have to sign off on it.
3. A copy of the subpoena must be filed with CCJJ for later audit.
4. The provider is free to refuse the subpoena at which point it would have to be ajudicated.
5. This power has been exercised by the federal government for decades with no evidence of abuse.
6. This power has been exercised by the federal government for decades with no constitutional challenge.
7. This can only be used for felonies or two specific misdemeanors.
8. If there is any hint of abuse, ISPs could complain to the legislature and the law would be repealed in one quick hurry and the AG would very well know that.
Agreed, can we call it JaredOfEuropa's Law
I'm too lazy to compose a creative sig.
I mean, think of their future-- don't you want them to be adults in a free society?
'Political power grows out of the barrel of a gun.' - Mao Tse-tung
I really wish more people would read and understand the Constitution so that we wouldn't have our rights chipped away by the government. This is an outright violation of the Constitution.
That makes me a "cretinous martinet"?
What I addressed was really just icing on the cake. The formal proof follows:
The Constitution does not expressly forbid something like this.
Q.E.D.
As always, all IMO. Insert "I think" everywhere grammatically possible.
How in the bloody hell have most Americans not read the Constitution and presumably, the Bill of Rights?
I do not even live in America and I know it (Constitution) very well. I seriously am hoping you are joking on the matter.
You’re kidding, right? I guess as a foreigner, you really have no idea how little Americans know about their constitution.
Go on the street and ask the average citizen to name a particular amendment from the bill of rights. They won’t be able to. There’s a good chance they won’t even know what that is. If you told them it’s the first ten amendments of the constitution and asked them to name any one of them, they might know that freedom of speech is one of them, or “separation of church and state”.
Alexander Peter Kristopeit bought his basement from his mommy for one dollar.
It also generally enables it by allow the Executive to engage in law enforcement and the states to do a wide variety of things.
You're excerpting me out of context.
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Luckily this was defeated on Friday. Seems like enough people with sense voted against this in the end. Unfortunately, the good senator that put forth this bill is not giving up on the idea and it may return. Luckily I know a lot of people in Orem (his home city) and come next election I will put some influence to get him out of there. Alternately, he could put forward legislation that deems mailboxes as inviolate as post office boxen. Then I might forgive him....might.
No, I'm not. You're arguing that private conversation on someone else's property,
The information is inscribed onto the carrier's property.
If you inscribe a piece of private information in somebody else's diary,
not only does your private conversation lose all protection from warrantless search and seizure
If people knew how little Constitutional protection they have in this situation, they'd be shocked.
carried out by some little martinet, but also, since it's the other party's property being searched, that somehow your private communications on someone else's property magically strips not only you but also that other party of his rights, too, because it's the other party's property being searched without a warrant, with maybe a requirement that some thrall writes himself a permission slip.
That's a recipe for unbridled tribalism. Pretending that that has anything to do with the this country's aspirations, its claims, its creed, its law, is cretinous. It serves only the martinets, the petty little tribal wanna-be chiefs with minds so coarse they can comprehend nothing beyond the simplest hierarchy and souls so small they worship it.
Or, in short, the "better to rule" crowd.
As always, all IMO. Insert "I think" everywhere grammatically possible.