Not at the supreme court yet, but it's for the jurisdiction where all the US tech companies fall under:
The US Supreme Court and its decisions
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No.
A pedo was communicating with his sellers via his Yahoo account. Yahoo noticed and notified the FBI. The FBI said "Make sure that doesn't get deleted while we investigate." The FBI found out that he also had a Facebook account and said "Please preserve whatever's there. We're investigating this guy." Facebook checked and found that he was indeed using the account for his... activities. The FBI then got a warrant to search his home and personal electronic devices. His personal devices indeed contained more of his... activities.
Obviously he was convicted. He wanted Yahoo and Facebook's evidence thrown out because muh Fourth Amendment.
No. Asking Yahoo to preserve evidence already in their possesion wasn't an unreasonable search or seizure. The FBI knew exactly what they wanted preserved and why. Asking Facebook to make sure they preserved data on a guy they already had the goods on and were investigating further wasn't an unreasonable search or seizure either. They may not have known what was going to be preserved there, but they had a specific reasonable suspicion that turned out to be entirely correct.
A pedo was communicating with his sellers via his Yahoo account. Yahoo noticed and notified the FBI. The FBI said "Make sure that doesn't get deleted while we investigate." The FBI found out that he also had a Facebook account and said "Please preserve whatever's there. We're investigating this guy." Facebook checked and found that he was indeed using the account for his... activities. The FBI then got a warrant to search his home and personal electronic devices. His personal devices indeed contained more of his... activities.
Obviously he was convicted. He wanted Yahoo and Facebook's evidence thrown out because muh Fourth Amendment.
No. Asking Yahoo to preserve evidence already in their possesion wasn't an unreasonable search or seizure. The FBI knew exactly what they wanted preserved and why. Asking Facebook to make sure they preserved data on a guy they already had the goods on and were investigating further wasn't an unreasonable search or seizure either. They may not have known what was going to be preserved there, but they had a specific reasonable suspicion that turned out to be entirely correct.
If you read the thread, the issue is that none of that reasoning was referred to in the decision. And the decision itself is what is used in precedent, and there was no other current decisions relevant to this sort of thing. Thus this could have knock-on effects as tech companies take advantage of that for other purposes far less savory. As it is, it establishes data privacy runs the opposite of how the EU has established things work, with no conditions, and again, most of the US tech companies fall under this decision.
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I did read the thread. I just don't get it. The FBI did not ask for nor did this court grant some new tools or some new shortcut for them to obtain information from our accounts. They're just allowed to ask that the information be kept safe for a period of time (not even forever, it's a temporary thing) while they go through that process, because digital evidence is a uniquely easily destroyed thing if nobody makes a copy. They still have to go through a process to get the information.
They could already do this. There was already a law.
This law professor thinks that in itself is a seizure and thinks this ruling accidentally has some scary implications for us all. I don't know what sentence he's hung up on but I'm looking at the sentence: "Nor did they provide the government with access to any of Rosenow’s digital information without further legal process." This law professor wishes the court explained in more detail how that's not a seizure. Come on now. Find me a dictionary in which you can "seize" something without taking possession of it or even having access to it.
But fine. Let's take this to the extreme. Can the FBI now ask for anyone's information to be preserved without cause because that's not a seizure? Let's ignore that this is a case where they had a very good cause. Could they do this in a different case in which they don't have a good cause, because it's not a seizure? Maybe, but what would be the point when they still need a cause to see the information?
I'm perfectly willing to be paranoid but I just can't find the cause for alarm here.
They could already do this. There was already a law.
link
This law professor thinks that in itself is a seizure and thinks this ruling accidentally has some scary implications for us all. I don't know what sentence he's hung up on but I'm looking at the sentence: "Nor did they provide the government with access to any of Rosenow’s digital information without further legal process." This law professor wishes the court explained in more detail how that's not a seizure. Come on now. Find me a dictionary in which you can "seize" something without taking possession of it or even having access to it.
But fine. Let's take this to the extreme. Can the FBI now ask for anyone's information to be preserved without cause because that's not a seizure? Let's ignore that this is a case where they had a very good cause. Could they do this in a different case in which they don't have a good cause, because it's not a seizure? Maybe, but what would be the point when they still need a cause to see the information?
I'm perfectly willing to be paranoid but I just can't find the cause for alarm here.
The cause for alarm here is that they are declaring that digital information functionally does not fall under seizure laws. Once, even not that long ago: documents had to be taken outright to be examined by the law: now they can just copy it, and since it's still there for the person to examine and edit: they haven't seized anything. This means that for the purposes of interacting with the law: they can now just copy all your digital jive without the requirement of subpeona or warrant. If you are suspected of something, they can (and now, legally.) just outright copy your entire digital footprint for their own perusal without informing you of anything, even that you are under investigation.
It's open writ to subject people to china level of scrutiny without any legal consequences.
It's open writ to subject people to china level of scrutiny without any legal consequences.
I graduated law school back in 2009, and this was already understood about digital evidence back then.
Most interpretations and explanations of "Seizure" have been based around depriving the owner of their property, or control over their property like moving it freely (you're being "seized" in a traffic stop if you aren't free to leave). In other words, seizures were "bad" because you didn't have access to your stuff, not because the government DID. If you have your stuff AND the government also has your stuff somehow, it's arguably not even a seizure issue -- that's more of a separate property right or privacy right, i.e. does ownership of something imply the ability to destroy it or deprive others of it.
This decision doesn't seem like a re-writing of seizure laws; it's just acknowledging uncomfortable truths about digital privacy and "ownership" in modern society that people have been willfully ignorant to for a long time. It's not "your" cloud, those aren't "your" books on the Kindle, "your" Facebook photos actually belongs to Facebook because Facebook is the one actually hosting it.
If you believe preservation requests constitute a seizure, then don't give your data to a 3rd party.
If you believe it's unreasonable to expect someone to live in modern society without giving their data to a 3rd party...
...yup.
Most interpretations and explanations of "Seizure" have been based around depriving the owner of their property, or control over their property like moving it freely (you're being "seized" in a traffic stop if you aren't free to leave). In other words, seizures were "bad" because you didn't have access to your stuff, not because the government DID. If you have your stuff AND the government also has your stuff somehow, it's arguably not even a seizure issue -- that's more of a separate property right or privacy right, i.e. does ownership of something imply the ability to destroy it or deprive others of it.
This decision doesn't seem like a re-writing of seizure laws; it's just acknowledging uncomfortable truths about digital privacy and "ownership" in modern society that people have been willfully ignorant to for a long time. It's not "your" cloud, those aren't "your" books on the Kindle, "your" Facebook photos actually belongs to Facebook because Facebook is the one actually hosting it.
If you believe preservation requests constitute a seizure, then don't give your data to a 3rd party.
If you believe it's unreasonable to expect someone to live in modern society without giving their data to a 3rd party...
...yup.
Was it set in actual solid legal precedent before this though? Because to requote one of the professor's statements,
That sounds like what you're describing, and again what really seems to take the prof aback is that it's not acknowledged at all. Am I correct in that via this decision, due to lack of any reasoning given, it not only makes a formerly grey(understood but not acknowledged) area into black and white legally, AND makes it harder to challenge in the future due to the lack of reasoning given? That's what I've gotten out of this so far - it may have been the de facto situation(also see NSA wiretapping controversies etc), but now it's also the legal one unless something can come up to challenge it? It also seemed like it could cause issues with drafting legislation surrounding expanding property or privacy law like you mention as it could conflict with constitutional law by this reading, based on what he stated.
Thinking about it, there's also the matter of how all this interacts with encryption, with things like the EARN IT bill trying to kneecap it...
There's supposed to be a blog post where the prof expands on his thoughts but while it looks like it hasn't happened yet, there's a legal paper here he wrote about the idea a couple years ago, it appears: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3751094
That sounds like what you're describing, and again what really seems to take the prof aback is that it's not acknowledged at all. Am I correct in that via this decision, due to lack of any reasoning given, it not only makes a formerly grey(understood but not acknowledged) area into black and white legally, AND makes it harder to challenge in the future due to the lack of reasoning given? That's what I've gotten out of this so far - it may have been the de facto situation(also see NSA wiretapping controversies etc), but now it's also the legal one unless something can come up to challenge it? It also seemed like it could cause issues with drafting legislation surrounding expanding property or privacy law like you mention as it could conflict with constitutional law by this reading, based on what he stated.
Thinking about it, there's also the matter of how all this interacts with encryption, with things like the EARN IT bill trying to kneecap it...
There's supposed to be a blog post where the prof expands on his thoughts but while it looks like it hasn't happened yet, there's a legal paper here he wrote about the idea a couple years ago, it appears: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3751094
Whether intentionally or not, the professor is misrepresenting the situation in that quote. The government did not copy the Defendant's private data. The digital media company preserved a copy of data they already had shared ownership in, at the government's request. The government only got access to that information after a subpoena. And the Defendant signed and "read" *snicker* a Terms of Service agreement where the company specifically said "Not only do we reserve the right to preserve your data, but you should expect us to do it under the exact circumstances that exist here."
Existing federal law allows the government to make such requests, so it was hardly "gray" before now. This seems to be exactly the sort of situation the federal law envisioned, not some fancy new interpretation that somehow went unchallenged. If someone later wanted to challenge that federal law on Constitutional grounds, this ruling wouldn't prevent or hamper that.
Existing federal law allows the government to make such requests, so it was hardly "gray" before now. This seems to be exactly the sort of situation the federal law envisioned, not some fancy new interpretation that somehow went unchallenged. If someone later wanted to challenge that federal law on Constitutional grounds, this ruling wouldn't prevent or hamper that.
It seems like it could have been grey constitutionally at least(as digital copying like this didn't exist when that clause was written, so was the intent based around preventing access to the owner or was it also privacy-related - which is the stance the professor seems to take) if there wasn't anything precedential before as claimed. Since this isn't exactly my area of expertise though, I'll defer to your judgement on this then, barring any new information coming out. Thank you then for clarifying for us non-lawheads.
I'm reading the professor's article and he is not making a compelling case for his unique definition of "seizure." He is actually arguing in apparent seriousness that because it is considered a seizure when the government issues a warrant and gains access to your data, it must also be a seizure when they make the preservation request. "The process is the same except for the last step." The last step being whether the government gains any access to your information or not. If they can look at your data, or they can't look at your data because they are waiting to get their warrant, same thing.
This guy isn't looking for the courts to clarify a grey area. This guy just has an otherworldly personal definition of seizure, and he wants some court opinion to interpret his personal definition into existence.
If this is who teaches law at Berkeley God help us.
This guy isn't looking for the courts to clarify a grey area. This guy just has an otherworldly personal definition of seizure, and he wants some court opinion to interpret his personal definition into existence.
If this is who teaches law at Berkeley God help us.
It doesn't read like that to me in any way. As far as I can tell, they are declaring that information they have not actually seized does not fall under seizure laws until they make a move to seize it. It seems like this same thing would apply if an organization were notified to preserve paper records in anticipation of a future seizure attempt. Until the information actually changes hands, it doesn't make sense to call it a seizure.
Exclusive: Supreme Court has voted to overturn abortion rights, draft opinion shows
“We hold that Roe and Casey must be overruled,” Justice Alito writes in an initial majority draft circulated inside the court.
www.politico.com
well we had a good run.
Holy jive.
but but but "bOtH pArTiEs ArE tHe SaMe" and "vOtInG iS mEaNiNgLeSs" and "rAtChEt EfFeCt" and "oNlY rEvOlUtIoN wIlL sAvE uS, aNyThInG eLsE iS a WaStE oF tImE"
Seriously, I want a socialist government as much as anyone, but the fact that there are so many people on the left who believe voting is meaningless (because apparently harm reduction isn't a thing) is one of the reasons jive like this happens.
Seriously, I want a socialist government as much as anyone, but the fact that there are so many people on the left who believe voting is meaningless (because apparently harm reduction isn't a thing) is one of the reasons jive like this happens.
So for half the country it'll be trips to California or New York or coathangers. Absolutely dreadful. Our only hope is this swings the electorate against the GOP and we survive November. Because I do not want to see a Post-Roe emboldened GOP with the House and Senate, with only Biden to check them. We're in for hell if that happens.
Once again, I can't help but feel: is that what the romans felt when the republic became the empire?
They’re doing this IN AN ELECTION YEAR because they know they have enough voting roadblocks in place that dissent through the ballot box will be meaningless.
As Kennedy warned “Those who make peaceful revolution impossible will make violent revolution inevitable”
Be prepared for a very “bumpy” next half decade.
I'm hoping you're wrong about that. If only left leaning people can get motivated to vote in the midterms, we might be able to stave off a further backslide.
Texas law should still be ruled unconstitutional based on interstate commerce law, though. One state has NO right to regulate what happens in another state, even if one of their citizens goes to the second state to do something deemed illegal in the first state.
Texas law should still be ruled unconstitutional based on interstate commerce law, though. One state has NO right to regulate what happens in another state, even if one of their citizens goes to the second state to do something deemed illegal in the first state.