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The Courts Government News

Supreme Court Limits High-Tech Snooping 368

Posted by michael from the old-amendment-learns-new-tricks dept.
MacRonin writes: "In an important declaration of the constitutional limits on new privacy-threatening technology, the Supreme Court ruled yesterday that the use by the police of a thermal imaging device to detect patterns of heat coming from a private home is a search that requires a warrant. The court said further that the warrant requirement would apply not only to the relatively crude device at issue but also to any "more sophisticated systems" in use or in development that let the police gain knowledge that in the past would have been impossible without a physical entry into the home. "We must take the long view, from the original meaning of the Fourth Amendment forward," Justice Antonin Scalia wrote for a 5-to-4 majority that cut across the court's usual ideological division. Justice Scalia said that to take any other approach "would leave the homeowner at the mercy of advancing technology, including imaging technology that could discern all human activity in the home." There is coverage in the: New York Times, Washington Post, and CNN. This older piece has a little background."
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Supreme Court Limits High-Tech Snooping More

Supreme Court Limits High-Tech Snooping

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  • LP Press Release (Score:5)

    by abischof ( 255 ) <alexNO@SPAMspamcop.net> on Tuesday June 12, 2001 @05:21AM (#158014) Homepage
    The Libertarian Party has also released a Press Release on this matter [lp.org]. Interestingly, the release also mentions several other surveillance devices that are still being developed by federal and state agencies. An excerpt:
    • A radar gun that allows police to "see" through concrete walls. The handheld device, about the size of a large hair dryer, shoots radio waves through walls and displays movement on a graph. The device will be in police hands by October.
    • High-tech scanners -- dubbed "X-rated X-rays" by critics -- that can show a clear image of your naked body under your clothes. The machine, called the BodySearch, has already been installed by the FAA in airports around the nation, and is used to examine suspected smugglers.


    Alex Bischoff
  • I fail to see the parallels between breaking the law to correct existing injustices and breaking the law to get high.

    If you don't like the law, change it. Don't just ignore and say it's not fair when you get caught.

  • If it went to trial, they would have to explain this and then it would get thrown out. They would need a good reason to be watching your house in the first place (I'm not familiar with probable cause laws, but if they had to resort to an infrared imager to suspect you in the first place I don't think they'd be able to meet those criteria for anything else).

  • no, the psychic friends are widely available to the public. Just give them a call :)

  • I'd have to say there is a difference between drugs. Tobacco, Pot, alcohol are one thing, and cocaine, heroin, crank are something else.

    Not all drug laws are the equivalent of moral laws. The production and distribution of cocaine, heroin and crank have serious geo-political, criminal, social and in the case of crank, environmental side effects that pot, alcohol and tobacco do not have.

    I'm all for the decriminalization of pot, and for the legal war to end against tobacco (even though I'm not a user) and that the use of alcohol between the ages of 18 and 21 be legalized, but I am not for the legalization or decriminalization of your "hard" drugs like cocaine or crank. More needs to be spent on treatment, but it should not be legalized.
  • It seems like a reasonable standard. If I leave the drapes open and someone looks into my window that is my problem, if I didn't want them to see I should close my drapes. And the court did say that this applies to any new technology.

    I think this is very good law.
    IANAL
  • What they said is actualy that the police need a warent if they are using some tool that the average person does not have access to. So for example if they are looking into my window with a telescope they probably do not need a warent, after all if they are looking in my window with a telescope I can easily block that by drawing my drapes. But if its an IR night vision thing they probably do. Hey its not a perfect ruling but from what I heard last night from Nina Totenburg on NPR it sounds like its quite good.
  • IANAL
    I think they are drawing a distiction. If a cop sees me beating up someone threw my window he does not need a warent to do something. If he was using Night Vision goggles he does.
  • eh? then why are radar guns (for detecting the speed of a vehicle) not "illegal search and seizure"?

    BECAUSE THEY ARE!
  • How about voluntarily giving up your Fourth Amendment right against search as a condition of owning a home on US Soil?

    This could be easily perverted any one of a zillion different ways - and none of them are as elegant as an executive order declaring a state of emergency in the "drug war".

    This is not over yet. Not by a long shot.
  • I wonder if it would spot a vibrator in-situ.

  • van Eck phreaking (Score:3)

    by MikeCamel ( 6264 ) on Tuesday June 12, 2001 @05:11AM (#158030) Homepage

    I assume that based on this judgement, van Eck phreaking [shmoo.com] (as featured in Cryptonomicon, and elsewhere) would also be considered illegal. I'm not up on US law, and don't know what difference there is considered to be between going into someone's home and someone's computer, but using van Eck (which isn't "in development", it's there now) to see what people are doing on their screens would seem to be similar to me. Are there any legal references to van Eck phreaking?

    I presume that wiretaps are needed for phone-lines, but is that for speech only, or data as well? Echelon, and all the fun ways of looking at data, can get their information from lots of different places, and this, of course, is only one of them.

  • Ah, but true strict constructionists could care less what the authors intended; they base their decisions upon what was written in the law, verbatim. Anything beyond the direct technical denotations of statutory law and case law is irrelevant.

    The law sometimes speaks in a language different from colloquial english; for example, "from time to time" is a phrase that seems vague to us, but has a specific technical legal meaning, and has for a long time.

  • The decision doesn't strike me as terribly technological; it's based upon the well-established principle of a "reasonable expectation of privacy". Informally, if a very curious neighbor or passer-by couldn't see/hear/sense it using common technologies (you expect a fair number of your neighbors to have binoculars and a few to have telescopes), then you have a reasonable expectation of privacy. I doubt many of the Supremes, or any of us, have many neighbors (except the cop who lives down the street) with access to this kind of tech.

    It also strikes me as an excellent example of a case where "slippery slope" is a valid legal argument against the alternative. (Logicians are fond of pointing out that it is a fallacy in rhetoric, but law has its own rules.) What meaning does freedom from unlawful search have if the police can, given adequately advanced technology, listen in on all your conversations (telephone and physical), scan your computer monitors, [moving more and more far-off] count the change and cash stashed in your underwear drawer (imagine a microtransmitter in the place of the security strip in your large denomination bills), inventory your pockets (between smart cards, remote controls for car locks, digital "anti-theft" chips installed in keys, etc, this is not as implausible as it seems), and lift images from your brain using its ambient EM emissions, all without ever setting foot on your property?

  • IIRC, in that case they wouldn't be using the technology to gather evidence, so the ruling wouldn't really have any teeth to stop them. (It would make any previously unknown evidence gained in the process inadmissible in court.) Whether it might be grounds for a civil action against the police after the fact is a different question, but in the situation you describe I wouldn't think such a case would have any substantial legs to stand on.
  • IIRC the legal term for this is "bootstrapping" and judges dismiss evidence and cases when it is shown to have happened.
  • Wow. You must be about 20 years old if you think that. The games that people play to get their judges elected were happening WAY before Bork. Of course I understand where you're coming from. I, too, have the odd perception that nothing existed before I was born 32 years ago.

  • On the other hand, we also have William Rhenquist (another so-called "strict constructionist") on the side of the dissent. And who's voting with Scalia on this one? Clarence Thomas, Ruth Baider Ginsberg, Steven Breyer, and David Souter. Some of those Justices are the ones pointed to by GOP aparachniks as examples of "judicial activism."
  • Wow, talk about a lead in. I just heard on the news on the radio that there is some new radar that "can see through underwear." I don't know how true this is, but if anyone knows of any other news items on the 'net, I would be interested. The purpose of this device is to detect concealed weapons from up to 50 feet away and sounds like it is supposed to be used at airports.

    ~afniv
    "Man könnte froh sein, wenn die Luft so rein wäre wie das Bier"
  • Cool, thanks for the reference. The radio news did say it could detect weapons from 50feet and also called it a radar. It seems it's neither.

    No wonder why I couldn't find it, it's in tarvel, and not technology. Oh well.

    And for others, this product is called BodySearch.

    ~afniv
    "Man könnte froh sein, wenn die Luft so rein wäre wie das Bier"
  • It's a shame that Scalia isn't consistently a strict constructioninst. I am glad he was able to lead the court to this decision, but I think he's led them to plenty of overstepping of bounds also. How about that decision to interfere in Florida Electoral procedures? That doesn't seem to be very strictly constructionist.
  • It's Forward-Looking InfraRed. While I'm inclined to agree with the Supreme Court majority on this one, it is a PASSIVE technology, meaning that it does no more than pickup infrared emitted from the houses. Is this really any different than, say, using cannines to pickup a scent?

    Speaking for myself, at least, it depends on the circumstances. If the police are combing neighborhoods with such intensive methods (be they dogs, FLIR, or what have you), then yes, this strikes me as being an abuse of privacy. On the other hand, if it is a suspected growing location, a very specific target, then I'm not ready to rush to their defense.

  • This is hardly your usual strict constructionist group of justices. Scalia, Thomas, Souter, Ginsburg and Breyer voted together in the majority. That's a very strange combination. I didn't know Thomas ever voted against Rehnquist.

    As for possible Bush nominations, this is one area where I hope he's like his Pa. Another nice independant thinker like Souter would be nice. The court doesn't need to become any more polarized. All these 5-4 decisions are bad for the law, since every time there is a new justice there's a possibility that almost identical issues could be revisited.

    --
    I hope we shall crush in its birth the aristocracy of our monied corporations ...

  • You are absolutely right when you say that production and distribution of cocaine, etc. have serious geo-political, social and criminal side effects. Which is precisely why they should be legalized. The illegal drug trade is causing serious problem and is in desparate need of regulation. That's right, we need to regulate the drug trade.

    The reality is that the trade is currently almost completely devoid of meaningful regulation. By pushing the market underground, we have made it impossible to monitor and regulate the drug business. Why aren't drug manufactures following relevant environmental regulations? Why aren't drug importers and exporters sending their products thru customs like other importers and exporters? Why aren't they paying duties and tariffs? Why aren't the marketers required to get licenses to sell like other retailers and wholesellers? Why aren't any taxes being collected? Why aren't food and drug safety/purity laws being applied to these products?

    These are the questions that drug warriors will refuse to answer. By persisting in the fantasy that the drug trade can somehow be eliminated, the drug trade is allowed to run amok almost completely free of regulation. Then, the damaged caused by the lack of regulation is used as "proof" that we shouldn't legalize and regulate these markets. Total bullshit thinking. The only beneficiaries of these policies are the drug dealers and manufactures and the prison-industrial complex. The drug dealers because they get to skip all the regulations that normal businesses have to follow, and they benefit from the increased profits brought about by the inflation that criminialization brings. The cops and prisons benefit from the perpetual inflation in their budgets and power which come from fighting the endless drug war. And it will never be one. Make no mistake: the only way out is "give up" and begin regulating these markets like we do the markets in other potentially dangerous goods.

  • The cops are allowed to perceive some wavelengths and not others. The condition of whether or not they're allowed to perceive a wavelength, is whether or not it is human-perceptable in it's raw form. The thinking behind this is probably that if people take precautions that give them a low-tech expectation of privacy, then they should be legally guaranteed (notwithstanding warrants) privacy against high-tech too, even if they haven't taken precautions to realistically give them an expectation of privacy.

    You can see this type of thinking elsewhere:

    1. It's illegal to perceive some kinds of unencrypted radio transmissions that are beamed into your home. It might be someone's personal phone call, and since they took low-tech precautions to make sure no one's in earshot, they are legally guaranteed privacy against higher-tech threats, such as people who own radios.
    2. It's illegal to descramble the contents of a DVD, because it isn't easy. DVDCCA took precautions against low-tech analysis of DVDs. Joe Schmoe can't look at a DVD's seemingly random bits and perceive a movie stream. Therefore, MPAA is legally guaranteed to be protected from experts too.

    It's fascinating how the legal system tries to redefine "due diligence" to exclude technological factors, so that the low-tech or ignorant people can blissfully be safe from having to consider technology.

    As you can infer, I'm kinda opposed to this ruling. If you broadcast information (even if it's subtle, such as IR radiation), then it's public. I think law enforcement shouldn't need a warrant to be allowed to perceive information that is public.

    OTOH, I like this ruling because it makes cops jobs harder, and that's an appropriate thing when a government is working against the interests of its citizens, as is the case with the Drug War.


    ---
  • The constitution is nothing more than whatever five of nine old men in Washington think it is at the given moment. I know saying things like that makes some people uncomfortable, but I don't know how people can accept this institution as legitimate in the first place.
    In the words of the late Justice Robert Jackson: "We are not final because we are infallible, but infallible only because we are final."

    When there's a dispute over interpretation of the law or the Constitution, the buck has to stop somewhere. As much as I disagree with some of the decisions that the Supremes have handed down, I'd rather give the final authority to people who are somewhat insulated from the political process, rather than people who need to worry about re-election in six (or fewer) years.

    However, I think the Court would be better off if justices had staggered thirty-five-year terms, instead of being appointed for life. Right now, if several justices happen to die or retire while the same party is in power, then that party can use the nomination process to (attempt to) stamp its ideology on the Court for decades after. If at least one seat on the Supreme had to turn over every four years, then political trends would influence judicial trends in a more controlled fashion.
    --

  • Because they're people trying to do the best of their job, just like any corporation's CEOs[1].

    The problem is in their understanding of what their objectives are.

    A simplicistic approach might be that a police force's job is arrest criminals. And if it stops at this, the more criminals they get, the more they're successful at their job.

    The problem is that there should be more to being a police force: in the end the real job of a police force should be something like "ensure the public safety". But that's a very elusive goal, so it's easier to fall back to the simpler one (arrest as many criminals as possible [2]).

    And to do this, they must stomp over the most elementary civil rights: if you (policeman) shoot in the crowd, you have some chances of hitting somebody you should, while all the innocent bystanders are "collateral damage" that doesn't appear in your curriculum, or on news outlets for that matter (think about the last time you heard a story about some innocent that has been arrested, or murdered [3]).[4]

    [1] insert obligatory anti-corporations, anti-microsoft rant here
    [2] after all, if everybody is in jail, there will be nobody out there that can endanger public safety
    [3] somebody would use the word "executed" here. Those who do, please visit the Amnesty International [amnesty.org] website.
    [4] of course I'm not suggesting that any policeman would shoot in the crowd just for the random chance to find a criminal. But I think that it can be agreed upon that the US government is undiscriminately screening children in schools, and this ruling implies that at least up to some point in time the police was undiscriminately using thermal imagin to spy in citizens' houses. This could lead to arresting people randomly.
  • I know you won't believe me, but I was trying to make a point.

    The point was, IMO it's easy to lose sight of the high goals for something more tangible, especially if the latter will get the officier air-time and the former won't.

    Given this, it's human to desire to do one's job well, and this means trying to acquire the best available tools and freedom to act to carry out that job. Unfortunately, in the case of police bodies, this means high survelliance, or as somebody calls it, a police state.

    About the Amnesty International thing, it's just my anti-death penalty beliefs seeping in. THAT was offtopic, the rest of the message wasn't.

    And no, I don't think that taking all the guns would solve the problem. But (sorry for the OT) I think that doing that would help solve other problems. But I'm no USA citizen, so it's not my place to tell those who are what to do and what not to do. I'm just happy that in old Europe access to firearms is restricted.

  • Re:shocking (Score:3)

    by BugMaster ChuckyD ( 18439 ) on Tuesday June 12, 2001 @05:20AM (#158060)
    It is shocking ecause he and Renqhuist have been very favorable to the police in search and seizure issues. Renqhuist who is definately a conservative, voted against this one.
  • Well I think anything the cop may hear would definatly be evidence to get a search warrent, but may or may not be applicable in court itself. As you can't exactly expect a cop to ignore what they hear. Now if the cop was sneaking around listening or accidently overhear, thats another story in and of itself.
  • It's called a system of checks and balances. The legislative branch makes the laws, the executive branch enforces them, and the judical branch interprets them.

    It's not a dictatorship of the Supreme Court. If we don't like what they decide about the Constitution and laws, we can go to back to the legislative branch and change the Constitution or the laws. And if you don't like the system as a whole, guess what? You can change the system with Consititutional amendments.

    It kinda sounds like you might be miffed about the Bush v. Gore decision that handed the election to Bush. Get over it, that decision will be seen in 100 years as a great decision. Think about what it would mean had it gone the other way. Then candidates could demand selective recounts based on whatever standards that favor them the most. Gore's mistake was to sue to extend the recount deadline. He should have let the recount finish, then challenged the results (as provided for in Florida law) based on the widespread reports of voting irregularities.

    Also, you might want to inform O'Connor's and Ginsburg's husbands that their wives are actually grumpy old men. I'm sure it'll be news to them.

    -sk

  • Remember those guys who barely made it out of your intro to [comp.sci, biology, physics, chemistry, statistics, etc]? They are now no longer referred to as 'idiot'; the proper terminology is 'your honor'.
  • This is simply another waveform that is being detected. How do they decide at which point you need a court order, and at which point is it okay? How many nm detector? That's all we are dealing with. How much difference is there between the red on my Dr. Pepper can and the red that these sensors pick up?

    What about 'visual wavelengths'? Well, in some cases, you need a special viewer (aka binoculars) to see an alleged criminal act. Are these now illegal? What is the difference between a pair of binoculars and an infrared camera? Both augment human vision beyond that which naturally occurs. For that matter, are police on stake-outs no longer allowed to wear eyeglasses or contact lenses?

    "Oh," you reply, "but you can just put up curtains." Yeah, well you can also 'just' put up infrared deflecting panels (I believe that Pink Panther chap sells some consumer grade ones).

    What about microphones? How is this different? We take a waveform that humans cannot naturally perceive (either due to amplitude, frequency, or simple placement of the sound emitting source) and modifies it for consumption.

    I'm not saying that this is a bad decision necessarily. It does seem to be the right one. But how is it possible for the Supremes, not known for their scientific or mathematical skills, to have made a decision which is a technological one?

    This issue is far from as black and white as others are posting.

  • Spock: "Captain, do you have a search warrant for this sensor scan?"

  • The importance of strict constructionists (Score:4)

    by dublin ( 31215 ) on Tuesday June 12, 2001 @04:47AM (#158074) Homepage
    If this doesn't highlight the importance of strict constructionists on the Supreme Court, I don't know what does.

    Scalia is absolutely right here, as usual: any other decision would result in our rights being quickly eroded away by advances in technology.

    It's too bad the Democrats are already planning to "fight dirty" to prevent another legal mind like Scalia's from sitting on the court. (Of course, that presupposes that Bush has the cojones to nominate someone of that caliber, a very iffy proposition given his demonstrated invertebrate nature to date...)

  • Re:The importance of strict constructionists (Score:5)

    by jmauro ( 32523 ) on Tuesday June 12, 2001 @05:51AM (#158078)
    t's too bad the Democrats are already planning to "fight dirty" to prevent another legal mind like Scalia's from sitting on the court. (Of course, that presupposes that Bush has the cojones to nominate someone of that caliber, a very iffy proposition given his demonstrated invertebrate nature to date...)

    I don't exactly understand how the Democrats are going to "fight dirty"? You mean that they are going to put the nominations through the same political process that all the others nominations have gone two throughout the last 210 years? Or even through the same process that Clinton nominations have gone through in the last six? So they don't give the Republicans any extra processes to route around the normal proceedures. They haven't had them in the last six years, and no one has ever had them. 154 of Clinton's nominations never even got a hearing. Is that fair for the majority to do? So they should give up the rights of the majority in order to appease them? The Democrats have the same rights to polical vetting of canidates as the Bush administration has in nominating them. It is all a political game, one way or another. Bush nominates them based on political reasons, and the Senate votes up on down on the same reasons. Being a legal mind has never got you nominated to the courts, it is always a polical descision and the charctersitics of what one calls a legal mind has almost always to do with their politics. To claim the Democrats have all the burden to be apolitical, but the Republicans do not is a fallicy, to claim other wise is to have your head in the sand. Besides Scalia passed through a Senate that was heavily controlled by the Democrat party (Even Al Gore voted for his confirmation.) What says that another like him couldn't pass through another Senate that is controlled even less by the Democratic party.
  • Nice to see that I've been wearing a tin foil sailor's hat for all the right reasons. I wonder how much 4x8 sheets of 1/8" copper go for?

    Laugh.

  • Re:The importance of strict constructionists (Score:3)

    by miracle69 ( 34841 ) on Tuesday June 12, 2001 @07:38AM (#158081)
    Second, the election was close enough to require a recount under Florida law. When George W. Bush's lead soon slipped to 327 votes, Republican field leader James A. Baker III repeatedly urged an end to the stalemate, asserting that "the vote in Florida has been counted and the vote in Florida has been recounted." In fact, 18 of the state's 67 counties never recounted the ballots at all. They simply checked their original results. To this day, more than 1.58 million votes have not been counted a second time.

    This is all good and what not, until you realize that the standard of error for a voting machine is the *same* as that of the gallop poll - around 4%. In an election that close, 1/2 of the time when you count votes, Bush wins. The other 1/2, Gore wins. Hence, they could count votes for the next 4 years and consistently come up with different answers. Voting booths are accurate, not precise.

    And precision is something we need to include into our voting system.
    HI Mom!

  • If this doesn't highlight the importance of strict constructionists on the Supreme Court, I don't know what does.

    It's not his strict constructionist views that I have a problem with (indeed, I tend to agree with those) but his almost blind adherance to tradition without regard for changing social mores that cause me to disagree. Don't get me wrong: I respect Scalia a great deal. He's an incredibly well-versed Justice with a sharp legal mind, and his adherance to principle is admirable.

    However, like the father in "Fiddler on the Roof" he shouts out "Tradition!" too frequently for my tastes. Unlike that father, though, Scalia fails to alter his opinions -- even in the slightest -- based on either new information or the simple fact that people's beliefs have changed. Social mores and taboos do (and should) change as time goes on. Scalia has given far too much weight to the way things were yesterday as a rationale for his decisions.

    ...And I really did think the majority's stance in the Florida recount was atrocious.

    - Rev.

  • I'd have to say there is a difference between drugs.

    My wife and I have come to a realization about our arguments. Whenever someone says "That's different", then 90% of the time it's not different. I think this applies here. If it is a victimless crime, then it's a law based on morality. With laws against theft or physical violence, you have a party who raises a complaint about certain behvior. If there is no one complaining, then a law is, by definition, a consensual crime (or, as we're calling them in this conversation, a "moral law.")

    The production and distribution of cocaine, heroin and crank have serious geo-political, criminal, social and in the case of crank, environmental side effects that pot, alcohol and tobacco do not have.

    Hey man, you know what? If drugs were legalized many of those problems could be brought under control. Think about it: they're criminal because they're against the law, so legalizing would take care of the black market aspect as well as the problems of corrupt government officials. Legalizing would also allow them to be regulated, so that production facilities could be inspected and safe measures taken for workers and the environment. It'd fall under the same regulations as the pharmaceutical industries.

    And remember: alcohol and tobacco kill more people per year than all other drugs *combined*. Let me repeat myself: alcohol and tobacco kill more people than heroin, cocaine, and methamphetamines put together.

    Something to think about...

    - Rev.
  • This is a consolidated reply, thanks to the other poster for the correction regarding the Democrats, though frankly I always suspected the Carville-crowd, even though I should have been more specific about the media rather than accusing the national Democrat party for the actions of one individual (and scary) Democrat. On to the main reply...

    The Third (and the Ninth) mean what they both say. The Third is the only one that hasn't been violated with impunity since its passage, so let's stick to the Ninth, which is FAR from an inkblot. I repeat: "The enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people." To put it in simple terms, privacy's not there, so privacy's there. Your flossing example rings only-too-true these days, frankly it makes my point better than it makes yours, as laws like your hypothetical (albeit all-too-easy-to-imagine these days...) anti-flossing law are what SHOULD BE struck down on Ninth amendment (privacy & body-ownership) grounds.

    I've never said that judges should be able to argue laws into existence on the basis of the Ninth; rather, I've said that laws (and LOTS of 'em, have you ever seen the entire dead-trees version of the United States Code? It's immense.) should be repealed because of the Ninth, and it hasn't happened! Privacy IS there, and daycare isn't, because privacy (leaving us both the hell alone, as long as we have no victims) doesn't involve enslaving someone else to look after my kids (or to pay the taxes on April 15th to hire someone to look after my kids).

    Think of a ratchet that only turns one way, judges properly interpreting the Ninth might UNdo plenty of the damage done by the legislature, but could not ever DO the kind of damage that unthinking Federal judges now do (think mandated spending that leads to more taxes) under the interstate commerce clause, which has been stretched beyond all recognition by a grossly irresponsible Federal judiciary.

    I have no illusions that the judiciary (or most of it, at least) would see things my way without a fight (that's why I rant about these things, challenge law professors to debates, etc.) I just think that an expansive reading is fully justified for "magnificent generalities." The "textual bounds on the rights the courts can concoct" in the case of a 'fair wage' would be the contract clause, which has been ignored almost as much as the Ninth. A proper interpretation of the contract clause would mean no minimum wage (a politically-unpopular position that's ideally suited to an unelected judiciary, since it's also the right position IMO).

    The "So what" about the tax-&-spend drugwar's racist past is that a lot fewer people know about it (or admit it) than should, I have no argument that the constitution also has racist roots but a lot more folks know about that. Plenty of laws (think gun control, for another example) have racist roots that their advocates today don't like to think about, so Jim Ray gets to be a walking, annoying-history-lesson whether or not I want to be. (Having my first & last names -- no relation BTW -- doesn't exactly help...)

    The racist effects of the tax-&-spend drugwar can today be seen in just about any prison. Just look at the crack vs powder disparity of the US sentencing commission, which should upset you much more than it apparently does, since it usurps judicial determinations of leniency in many cases. Go visit any US prison, look at the drug inmates, and remember that this country is about 11% black. If you see 11% black inmates, I want to know what prison it is. Typical rates are more like over 50%. You can quibble about people, motives, and effects, but you've not convinced me, so the effects still ARE racist, period. It's harder to speculate about people and motives, but effects can be seen very easily.

    The problem with seeing the Tenth in the absence of the Ninth is that Tallahassee can then take over where Washington DC left off in the oppression-game. I own Jim Ray's body, not Washington politicians and (here's where the Tenth comes up short on the drugwar) not Tallahassee politicians with the same last name! IOW, I don't trust the politicians in Washington, but I don't trust the politicians in any of the 50 state capitals, either. Plenty of laws should be repealed on Tenth Amendment grounds (Jenna Bush wouldn't be in trouble for drinking at age 18 if it were followed, for example, but federal highway funding is too complex an issue for this discussion).

    The laws against using medical pot (to give a recent example of a Supreme Court unanimous botch-job) should have been repealed on the basis of the Ninth, with the Tenth in the background at best for the medical pot issue, since the Ninth (IMO) covers recreational drug use (like it or not). Viewing the Tenth in a vacuum is a mistake, the Bill of Rights should be read as a whole, and rights of individuals should come first, with states second, and the feds third, as a last resort if the first two can't word (example, the United States SHALL MAINTAIN a Navy, but can raise armies - the founders didn't trust a standing army for good reason -- but that's getting back to the Third amendment). Reality these days is exactly the opposite heirarchy -- Feds over States over lowly individual rights -- obviously I think that's wrong. It's not a mistake that individual rights were always put before group-rights in the Bill of Rights, and always next to the ones that mattered, and the Ninth and Tenth need to be read together just like (IMO) the first and second need to be read together, and thought of at the same time. If you think that the Ninth (or the Third, for that matter) is an inkblot, then by all means, go argue for repeal! (I doubt I'll see this happen, I have yet to find anyone who will argue for that proposition.) You don't have to, because the irresponsible Federal judiciary has effectively repealed it by ignoring it. I'm the one who has to argue and rant, the inkblot crowd merely has to sit back and relax (unless I'm too hard to ignore)!
    JMR

    Again speaking ONLY for myself here, I'm probably a minority of one in this.

  • elefantstn is right that the process got VERY dirty with Bork, but it's wrong to say the Democrats were Bork's only opposition (far from it, check the CATO [cato.org] archives from the period if you doubt me) although with video-rental records, it's safe to say that Democrats were clearly the dirtiest.

    CATO [cato.org] (and Jim Ray, I'm chairman of the Ninth Amendment Foundation in my other life) opposed Bork in part because of his writings on the Ninth Amendment, which he called "an inkblot." The Ninth Amendment states:

    "The enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people."

    Doesn't seem like an inkblot to me! Plainly, the US constitution and especially the Bill of Rights -- no matter what Bork or (left-wing Democrat Senator) Joseph Biden or a variety of ignoramus-law-professors may say -- is not an exhaustive list of rights, but merely a starting point for the rights we SHOULD expect, and (as Jefferson called them) the Ninth & Tenth Amendments are "magnificent generalities." No, the right to privacy (and even the word, "privacy") never gets mentioned in the constitution, but IT DOESN'T MATTER! because the enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people, and one of those "others" is privacy, like it or not. If you don't like it, I heartily suggest an attempt at repeal!

    Of course, another of those 'other' rights is self-medication and general body-self-ownership, whether the Supreme Court, Congress, the states, and various lower courts agree or not. The tax-&-spend war on (some) drugs is un-American and morally wrong and wasteful, and it has provably-racist roots in the past and provably racist effects today, but nobody wants to admit it and honorably opt for repeal. Instead, they want me to be "reasonable," and spend even more money every April 15th on "treatment," which is a nicer version of prison, and will cost even MORE than too-many prisons letting violent offenders out to make room for more drug "criminals"!

    It's funny how nobody wants to debate me on these points in an equal-footing situation. It's easy to find a law professor who will claim that the Ninth is "not important" and "means nothing" (just go to any law school & sit in on con-law if you doubt me) but find me one who thinks that the Ninth should actually be repealed and will debate me in an open forum! You can't? That's because they'd rather not think about it. I may make them mad, but I also make them think about it. The Supreme Court has never invalidated ONE LAW solely on Ninth Amendment grounds, and that's THEIR intellectual problem, not mine. I'm just a thorn in their sides on the issue, and they'll get the respect they want from me when they deserve it, not before! Ok, rant over, back to work. :)
    JMR
    (ESPECIALLY speaking only for myself today, even more than usual...)

    "It is disappointing, but perhaps not surprising, that Supreme Court justices and other constitutional interpreters have typically fled from the hard moral judgments called for by the Ninth Amendment."
    -- Steven Macedo, _The New Right v. The Constitution_ p. 7.
    (Go find and read this book.)

  • You should read his other 4th Amendment opinions (Score:3)

    by werdna ( 39029 ) on Tuesday June 12, 2001 @01:40PM (#158086) Journal
    Scalia is far from a "strict constructionist." (A notion associated more with the jurisprudence of Bork and, to some extent, Thomas than Scalia). Indeed, he expressly eschews notions such as original intent and congressional intent -- the doctrinal view (euphemism for how he explains how he reaches some, but not all of his results -- same deal with the left by the way) is called textualism, whereby he presumes that text plainly resolves all questions, and that it is an anathema to pierce beyond the text to the "intent" of the author of a statute. (OT, but for completeness, Rhenquist's views seem to me to be neither originalist nor textualist, but rather statist in nature.)

    At any rate, while I agree that Scalia has been somewhat solicitous of first amendment issues (textualism really doesn't permit much messing around with "Congress shall make no law . . ."; Bork can do some things here Scalia simply can't), his record on the Fourth Amendment is abysmal. Since his term on the Court, he has virtually made the Fourth Amendment an obscure exception. This case is remarkable in view of this, and I look forward to carefully studying it.
  • If a cop stands next to me and listens to me talk to someone on the telephone, does this violate my rights under the 4th Amendment? Of course not.

    Actually, given the current climate involving search-and-siezures, it might. One court just ruled that a cop had no right to assume a suspect had a gun (he did), just because he stuck his hand into his pocket when the cop approached.


    --

  • If he was a strict constructionist jurist instead of a radical ideological conservative, the supreme court would not have stepped in there... But he's just a radical ideologue.

    Gore's "unwillingness to admit defeat" is irrelevant. The Court is supposed to be an impartial arbiter of justice, not a big daddy to slap around kids for fighting in the back seat. Gore had the right to the recourse of the legal system, and just because Scalia got ticked doesn't give him the right to reinterpret jurisdictions ad hoc to support the result he wants to see.

    Virtually nothing you've said makes any sense, but I won't go on.

    Boss of nothin. Big deal.
    Son, go get daddy's hard plastic eyes.

  • There is already a legal doctrine of "hot pursuit", allowing the police to go where necessary when chasing down a fugitive.

    As for emergency situations in general, the best policy (for police or anyone else) is to do what you have to, but be prepared to explain yourself to a court of law afterward and go to jail if they don't buy your explanation.
    /.

  • There weren't repeated recounts. There wasn't even one complete recount. It looks like a complete recount wouldn't have changed the outcome, but that doesn't change the fact that claiming that there were "repeated recounts" is, at best, misinformation.

    Now, let's watch that karma burn.

  • Anyone remember "Blue Thunder"? (Score:3)

    by wiredog ( 43288 ) on Tuesday June 12, 2001 @05:31AM (#158096) Journal
    Movie with Roy Schneider made in about '84. With the LAPD using infrared imaging technology and Apache-like helicopters.

  • Only in america (Score:3)

    by AnalogBoy ( 51094 ) on Tuesday June 12, 2001 @06:02AM (#158099) Journal
    Has anyone noticed the backlash of the world against america? We got kicked off of two UN commissions. There was a huge kneejerk reaction from Europe regarding our execution of McVeigh. The same european nations are fond of calling Gee Dubya Shrubya a "Mass executioner". America is slowly becoming more and more a laughing stock - the world's comedy relief - because some of the stuff that goes on within our borders. Except most countries are too scared to publically laugh, because our collecive military phallus is so much larger than anyone elses.

    Only in America could someone sue a tobacco company and win $3 billion while we sentence a 14 year old to life imprisonment for a crime he committed when he was 12 years old.

    A friend of mine has pointed out that many of his overseas friends say that nobody in the US is responsible for their actions. Arguably someones mother didnt hold them enough or daddy liked to get the switch after his son a little too often, but in the end we make the decision to go ahead and do something. In other nations i've picked up, someone is more and more responsible for their actions every day, while in the US the equation for your responsibility varies on so many factors its hard to describe (Among them is your fame, riches, color, upbringing, number of warnings, if you were on springer, age (often inversely), sex (both gender and who you choose to mate with), sexuality, the music you listen to, the color or type of clothing you wear, religion and area of the country you live in).
  • Comment removed based on user account deletion
  • Comment removed based on user account deletion
  • > The very institution of the Supreme Court is disheartening. The constitution is nothing more than whatever five of nine old men in Washington think it is at the given moment.

    Whoa, you mean you'd prefer the Constitution to mean whatever the Executive Branch thinks it means today? Or the Legislative Branch?

    > The real truth is that if Antonin Scalia's Lincoln Continental was hit a by Mac truck while he was boffing Ruth Bader Ginsburg in the back seat

    Thanks for that image. I really needed that. I'm off to visit goatse.cx. To numb the pain.

  • > I assume that based on this judgement, van Eck phreaking (as featured in Cryptonomicon, and elsewhere) would also be considered illegal.

    ...because this technology is not widely-available to the public, you're right. Without a warrant, Officer Donut can't snoop your EM emissions.

    Of course, at present, this technology is so not-publicly-available, that Officer Donut ain't the guy who's gonna be doing the snooping anyways. (If you're doing something for which your opponent is sniffing EM leakage, odds are your opponent doesn't need a warrant, 'cuz you're not gonna be going to trial ;-)

    > Are there any legal references to van Eck phreaking?

    Probably not for another 10-20 years.

    After that point, it may be sufficiently declassified that Officer Donut will be allowed to use it with a warrant, and yesterday's Supreme Court ruling will apply to it.

  • > Should I voluntarily give up my Fourth Amendment right when I drive my car? I guess I did give that up when I got my license and titled my car.

    No, you didn't. All you did was agree to be breath-tested (depending on what state you're in) at an officer's discretion. You can still refuse the breath test, but you've agreed that refusal to take a breath test has the same consequences as a DUI conviction.

    > What about when I walk down the street? After all, if I don't want to be searched I could voluntarily return to my home never to leave again.

    Not the same thing. There are no signs posted on the sidewalk that say "Entry to the sidewalk constitutes consent to search of your person and posessions".

    Next time you're in an airport, look around the security checkpoint. You will find a sign that says access beyond the security checkpoint constitutes consent to search.

  • Re:LP Press Release (Score:3)

    by Tackhead ( 54550 ) on Tuesday June 12, 2001 @07:40AM (#158108)
    > If they are using [BodyScan] to scan domestic passengers, I'd cry foul. However, if they are being used at international airports as an aid for Customs Agents, then I'm all for it.

    I'll disagree with you here -- you voluntarily give up your Fourth Amendment right against search as a condition of entering the secured area of the airport.

    This applies for domestic and international flights, and the signage in front of the security checkpoint is pretty clear. In exchange for the right to claim your boarding pass, you agree to be subject to search of your property (baggage X-ray, baggage bomb/dope-sniffer wand) and person (walk-through metal detector, metal-detector wand, pat-down and beyond at guard's discretion).

    It's all in the fine print of the airline contract, and in the bold print of the sign in front of the checkpoint. If you decide you don't want to be searched, you're free to turn away from the checkpoint and not board an aircraft.

  • You seem to forget we had a little war almost 250 years ago so that the US would not be like the UK.

    British subjects are so completely spied upon by the government that George Orwell's nightmare has come true. Compared to the multitude of cameras spying on you on every street corner, the t.v. detectors are insignificant.
  • I've had a slightly different take on this for quite a while. I believe that federal laws that make it illegal to descramble satellite or other signals like that of cell phone traffic that pass through my property are bogus. The information is there, it is on my property, I didn't ask for it to be there, I should be able to do what I want with it.

    Obviously the US government does not agree with me on that issue. But, at least they are being consistent here. The heat and other non-obvious emissions from my property are not intended for law enforcement or any one else to be able to use, even if they pass through public property.

    So, as long as it isn't legal to watch pirated satellite tv I think it is proportional that the cops can't watch us in our own homes.

  • Re:Another new device.... (Score:3)

    by Speare ( 84249 ) on Tuesday June 12, 2001 @05:20AM (#158128) Homepage Journal

    This scanner you're referring to does NOT work "50 feet away".

    www.cnn.com travel news 2000-08-21 [cnn.com]

    I couldn't find a larger image than the one in this CNN story; you get body shape with ghostly clothing over it. The subject has to stand on a platform inches away from the scanner. It's to be used where strip-searches would otherwise be warranted, or in high-profile airport situations.

  • X-Ray Spex (Score:3)

    by mrogers ( 85392 ) on Tuesday June 12, 2001 @06:45AM (#158131)
    If the officer looks through your window, he is not violating your rights.

    If he looks through your window using a pair of spectacles, he is not violating your rights.

    If he looks through your curtains using a pair of X-Ray Spex, he is violating your rights.

    That's why the ruling focussed on the use of equipment not available to the general public. Surveillance with the unaided senses, or with the senses aided by everyday items such as spectacles and hearing aids, is permissible. Surveillance with high-tech devices (by the standards of the day) requires a warrant. Unfortunately the dissenting judges didn't appear to understand this distinction. From the Washington Post:

    In his dissent, Stevens drew a distinction between "through-the-wall surveillance," which he said was impermissible, and "off-the-wall surveillance" that records conditions outside, but not inside, a home. Since the thermal imaging device that was pointed at Kyllo's home only recorded heat levels outside the structure, "the officers' conduct did not amount to a search and was perfectly reasonable," he said.
    Stevens overlooked the fact that nothing can be learned about conditions inside the home by measuring signals that are independent of conditions inside the home. Any sensor that is physically located outside the home is measuring conditions outside, but those conditions may reveal an unacceptable amount of information about conditions inside (as in the case of X-Ray Spex that use x-ray levels outside the home to determine the positions of objects inside the home).
    --
  • Scalia....... I find Scalia to be a very interesting justice, As i consider myself a bleeding heart liberal type, most of my friends can't beleive i would like scalia, but its in cases like this where he really shines through on people's basic rights. I bet he'll end up Chief Justice one day, Scalia on a more liberal court would be a great day for human rights thats for sure.

  • Seee I disagree a bit.. I think he goes with his principles more often than not. as for Oconnor, i have very little repsect for, especially after the election debacle.

  • Just an aside, by way of agreement with your analysis of Scalia. One of my best friends is clerking for Scalia this year and has told me several times that Scalia is the smartest person on the SC and the finest legal mind he knows of.


    I have zero tolerance for zero-tolerance policies.

  • Thermal imaging is nothing. A number of companies are being funded by the Department of Justice to develop a new type of radar that would allow police to scan somebody on a sidewalk to see if they had a gun - without their even knowing it. Details here [spie.org]...
  • It's not the convservative making a pro-privacy decision that shocks me. It's the courts making an educated decision.
  • Food for thought:

    Although it's demonstrably false, most people do have expectations of privacy when it comes to the Internet. That's why encryption hasn't taken off nearly as much (analogy: closing the blinds on the window).


    --Fesh

  • The police do not have to be blind to what your neighbors can readily see and know. "General public use" surely means the police officer can wear ordinary corrective lenses or contacts when looking at your house. High-powered telescopes are out, as such behavior is generally illegal even for private people for looking into homes. (Peeping Tom laws) The whole question turns around what is "reasonable."

  • The government was watching the light bulbs inside the house. It was not watching smoke emerging from the chimney, or feeling heat on the walls of the house. (As I recall, in this case, the lamps were in the attic, and the heat coming from the roof.)

    It really comes down to what is reasonably considered to be in "plain view." Once you put your trash out for collection, it is, but while it is on the back porch in the trash can, it isn't. If you can see it from a window by the front door it isn't, but if you can see it with a telesecope from the church steeple 5 blocks away, it isn't.

    It all comes down to the word "reasonable", in the context of home privacy. They sat 9 grandmas and grandpas down, and came out with this result. Change the facts a little, and maybe the votes are different. In this area of the law it is possible to overcomplicate it.

    In general, home cases are mostly about the privacy of the home, not the needs of police. If he'd been doing this growing in the empty room above his gas station, he'd have been nailed for sure.

  • Pot odors would be enough to get a warrant for sure. Loud music, if a distubance of the peace, could justify him going up and knocking on the door and getting a better whiff. Heck, might justify an arrest w/o a warrant, but I don't think so.

    The justification for scanning Kyllo is that he lived NEXT DOOR to somebody the cops suspected of growing pot. No noise, no smell, no bother, no justification, just random nosiness.

  • They could, but they normally wouldn't. It's far too risky.

    Why? Because if you were growing tomatos there, or had a really snazzed out aquarium setup (especially a coral reef one) they could get a false positive. Busting into your house to find out you had nothing would garner all sorts of media attention. Worse, the judge who had been lied to would start asking some very very hard questions.

    Police do not typically risk their careers over such trivial violations.

  • I believe the SC has often used the phrase "reasonable expectation" of privacy. For instance: Bong on the dashboard: not private. Body in the trunk: private. Shouting, "I'm going to keep stabbing you with this knife until you are both DEAD!" at the top of your lungs: not private. Quietly killing your ex-wife and her boyfriend such that only Kato Kaelin heard anything: private. Heat emissions: private, for the time being. Once the barrier of "reasonable expectation" is eroded, Heat emissions: not private.

    I recall reading some time ago that in certain area, the pollen count for marijuana was extremely high. In this case, establishing that type of empirical evidence may be sufficient for a judge to sign a warrant.

    If I also recall, part of this case originated with much higher than normal consumption of electrcity in the guys home. That information was not private.

  • However, the Supreme Court has in the past ruled that drug dogs are merely an extension of the officer's senses; thus, the use of a drug dog is not considered a search AT ALL - which IMO is a bunch of shit. That's just as ridiculous as saying that in the case this article refers to, the heat-sensing devices were merely an extension of the officers' own senses.

    Dogs are not generally considered to be technology, so that likely has an effect on such rulings. Another issue that may come into play if someone tried to use this ruling against trained dogs is the level to which your privacy is invaded in the process of finding out about illegal activity. On this issue I'd say they are totally different. Dogs don't come into your home unless there is already a warent for your home. You don't encounter them unless you are already in a public place - which is probably why they are considered just a part of the officer. More importantly, a dog trained to sniff for drugs tells the officer he thinks he smells drugs. A dog trained to sniff for guns tell the officer he thinks he smells guns. He does not observe, record or report anything else about you, even if he has the senses to know that you also have been shagging your secretary, not using deodorent and have a twelve year old's soiled panties in your pocket. Other forms of warentless search/observation that are being rejected may have more of a capicity to invade your law abiding privacy in the course of finding illegal activity. Libertarians probably don't care if a form of warentless seach/observation is finely tuned to only detect an illegal activity without infringing at all on the rest of a person's privacy, but I suspect that it will matter to most folks.

    If the use of dogs hasn't been rejected before this, I doubt this ruling would be the one to revisit the issue. They really aren't that similar.

    Kahuna Burger (just posted this AC, but it killed my moderation anyway, so screw that.)

  • Just a thought...

    But America *HAS* lasted over two hundred years. That is a feat many a nation cant brag about.

    Maybe things are going a little downhill and some of the flaws of our republic are glaringly obvious now yes that is true.

    But it is still a nation where one person can makea difference. Obviously people like GWB can make it to the presidency. Jimmy Carter made it and he arguably was a pretty laid back southerner. The point here is that anyone can make it to the presidency still.

    I just want to voice my opinon that while not perfect there isnt much better out there ya know?

    America is a huge economical force. I live my day to day life with no governmental guidance, okay I know it is there but by and large im free. That says a lot. I can hop in my car and drive to the edges of our country without anyone caring. I can buy a gun and shoot it, hopefully for a long time to come. I can do all of this and hey I can still become nearly instantly rich if I was lucky.

    While not perfect I don't think America has held together without some very strong glue, perhaps not everlasting perfect glue. Good stuff nonetheless. Anyways.... Just a little tired of all the unfounded political bashing going on around here. People fly off the handle complaning about GWB, the justices yadda yadda.. yet how many of you can give irrefutable proof that our president is on a course to destroy our nation and unhinge our morals and destroy the economy? Till then...

    Jeremy

  • There is some very fuzzy logic here. Suppose a police officer runs car license plates at random through the police database and finds a stolen car. Can he arrest the driver? After all, he was using technology not available to the public in order to obtain incriminating evidence.

    If we follow this to the end, the police should make available to the public all their databases, for instance those that record the "modus operandi" of criminals. If they are not allowed to use heat sensors to look inside my house, they shouldn't use computers to look into my personal habits either.

  • It's disturbing that the FBI tries to do this sort of thing, sure. But that's their *job*. Their job is to track down crooks, by any means the law deems acceptable. I'm no lawyer (or lawyer-wannabe), but that's a huge gray area, and if the difference in making a case (which is your job) lies in getting a piece of evidence, you're going to be willing to go quite far to get it.

    This means, by the way, that it's our job to view the FBI's attempts to control surveillance technology with utmost distrust if we want to preserve our freedom.

    Ray
  • The Ninth can be called an inkblot, in my opinion, for the same reason the Third can. Not because it is unimportant, but because it's never become an issue. The rights enumerated in the Constitution never have been used to disparage other rights.

    The powers of the Federal Congress, for instance, are exhaustive; it is perfectly correct to argue that, if the authority is not granted in Article I, Section VII, the US Congress may not do it. It is not correct to argue, however, that because the right of an individual to do something is not listed in the Bill of Rights, or elsewhere in the Constitution, that individual may not do it. If this sort of argument were possible, it would easily allow judges to argue laws into existence, and circumvent the legislature.

    So you're quite right to say that it's not an exhaustive list. I have the Constitutionally protected right to petition for redress of my grievances, and the Constitutionally unprotected right to floss my teeth before bedtime. The difference is that a law might legitimately be passed to prevent my flossing, if the dentists' lobby found it was losing money. :-)

    I found this comment to be particularly interesting:

    one of those "others" is privacy, like it or not

    It is? Whether I like it or not? Because, I suppose, you *do* like it. Well, frankly, I like it too, but to the contrary, it ain't there. Should be, IMO, but is not.

    Along the same line, though, which other rights do we have, whether we like them or not? The right to health insurance? The right to a fair wage? The right to affordable daycare? I've heard these things and others argued by people in high positions. There are no textual bounds on the rights the courts can concoct for me, so any distinction you make between uses of the word 'right' are bound to be contentious and easily usurped. Having abandoned the need to write down our laws, perhaps they'll give me the right to a new car; that would be nice, anyway.

    Following your expansive interpretation of the Ninth, it's hard to see any real distinction between the Legislature and the Judiciary, except that the judges are more dangerous and less accountable lawmakers. It's a cheerful fantasy to think that, given such unlimited power, the Judiciary would prove to be wise and benevolent rulers, protecting our freedom. One might entertain the same hopes about kings, with as much historical grounding.

    I must say as well that it seems very ironic that you'd quote Jefferson, that great advocate of judicial restraint, to support your position. A few of many quotes which give a better view of Jefferson's opinion of judicial activism:

    ...their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions nevertheless become law by precedent, sapping by little and little the foundations of the Constitution and working its change by construction before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance.

    This member of government was at first considered as the most harmless of all its organs. But it has proved that the power of declaring what law is, ad libitum, by sapping and mining, slyly, and without alarm, the foundations of the Constitution, can do what open force would not dare to attempt

    The concrete nature of law is one of the greatest things we have in defense of liberty. Viewing the Ninth as a carte blanche for (especially unelected Federal) officials to make up what rights suit their tastes is not only textually unjustified, but would be practically disasterous.

    A few other points:

    The tax-&-spend war on (some) drugs is ... provably-racist roots in the past

    So what? The Federal Constitution itself has self-evidently racist roots. We still use it.

    and provably racist effects today,

    Umm... what is a 'racist effect'? People may be racists; motives may be racist; effects are just effects. Even looking past your wording to what I believe you're saying here, this point is hard to justify in my view. As it happens, I would like to see most drugs legalized, and most federal drug laws struck down on 10th Amendment grounds, but that's another matter.

  • The Third (and the Ninth) mean what they both say.

    Which is just what I said. Or can you point out to me an occasion when the ennumeration of certain rights in the Constitution was actually used to deny or disparage others?

    Statutory laws have been used many times to deny and disparage people's rights. The ennumerated rights have not. End of story.

    To put it in simple terms, privacy's not there, so privacy's there.

    How do you know it's there?

    Really. How? Because it fits with your political theories of the proper role of government? Other people have different beliefs, and will extrapolate different rights. Can you prove that your notion of rights is the true one? I have to doubt it.

    What we have in common are laws. We have enough trouble deciding what they mean, but at least they're tangible.

    Your flossing example rings only-too-true these days, frankly it makes my point better than it makes yours

    I disagree. I don't think it makes your case at all. The fact that a law is bad does not make that law unconstitutional. The fact that you'd like a particular law to be unconstitutional does not make that law unconstitutional either. It does not even mean they should be unconstitutional, really.

    If a law is bad, that just means that that law shouldn't have been passed. Same way that if a constituional provision is bad, it just means it's a provision which shouldn't have been passed. Some bad sorts of laws we have categorically proscribed; others we haven't.

    I've never said that judges should be able to argue laws into existence on the basis of the Ninth

    Nor have you said what would prevent them from doing so if they chose. Sure, they do that now; you're championing a reading of the Ninth which would vastly increase their ability to do so. A broad interpretation of the Ninth inherently involves increasing judicial power. It does not inherently involve your notion of how that power should be used.

    Granted, if the judges used their power wisely, as you suggest, all would be well. Is this a good strategy for us to pursue, then, to protect what liberty we have? I think it an exceedingly poor strategy.

    Besides which, the Court is under no obligation to the Constitution that Congress is not under also. Why not convince Congressmen to repeal laws which violate our unwritten rights? At least we can attempt to do this without giving them more power than they already have.

    Think of a ratchet that only turns one way

    That's obviously what you're thinking of. Convince me it'll only turn one way. Either tell me that your reading will not increase Judicial power, or furnish me with some guarantee that it's a one-way rachet.

    All of our political history has been spent in search of a one-way rachet.

    The "textual bounds on the rights the courts can concoct" in the case of a 'fair wage' would be the contract clause

    That's not much of a boundry. Right off the bat, it wouldn't stop federal courts from declaring 'fair wage' rights at all. And even the state courts wouldn't have to impair the obligation of contracts; they could forbid people to enter into certain sorts of contracts. Greasy? Sure. What will you do, take them to court?

    To the extent that we don't have unpopular 'positions' being decreed by an unelected judiciary, it's a good thing, not a bad one.

    The "So what" about the tax-&-spend drugwar's racist past is that a lot fewer people know about it (or admit it) than should

    Should why? For educational purposes? Sure. But I see no way in which this bears on our political evaluation of the laws themselves.

    Just look at the crack vs powder disparity of the US sentencing commission, which should upset you much more than it apparently does, since it usurps judicial determinations of leniency in many cases.

    I do not, in general, approve of the ability of judges to pick and choose punishments for crimes. It is my opinion that punishments should be as objectively determined and applied as possible; I can think of few reasons why two people who break the same law should receive different punishments. If there's racism about, it's more in the fact that courts sentence blacks more harshly for the same crimes. Again, I call for reigning in the judiciary.

    Go visit any US prison, look at the drug inmates, and remember that this country is about 11% black. If you see 11% black inmates, I want to know what prison it is. Typical rates are more like over 50%.

    Murder rates amongst blacks are much higher than amongst whites, also. Are our murder laws racist also?

    This is simply not a cogent line of reasoning. Further, to view things in such a way denies individuals the sort of personal responsibility which life in a free society requires. People break the law of their own choice, not because they are black or white. Nothing in the act of outlawing a particular drug usurps the rights of people of one race over those of another. Whatever the punishment is for crack or power cocaine, the laws do not curtail my freedom more or less than another's whatever his race.

    Now it is my opinion that such laws are bad ones. If I had my way, most of these drugs would be made legal, and non-violent 'offenders' promptly released. This would, as you point out, benefit more black people than white people; but neither would my choice be a racist one for favoring blacks. Those consequences would be incidental.

    The problem with seeing the Tenth in the absence of the Ninth is that Tallahassee can then take over where Washington DC left off in the oppression-game.

    Indeed, state soverignty is not an unproblematic policy. It is, however, an undeniable feature of our Constitution. The fact that this may have unpalatable implications does not make it otherwise.

    since the Ninth (IMO) covers recreational drug use (like it or not)

    It would be hard to put the paradox of your postion more succinctly. 'In your opinion', 'like it or not'. What does this mean? I agree that it is your opinion. I do not agree with your opinion, but I agree that it is your opinion, 'like it or not'. You seem to mean also that it's the Truth, 'like it or not', as if the Truth of the Ninth Amendment were some Platonic thing-a-ma-jig, to which you had some strange congnitive access. If this is the case, please explain it.

    If you think that the Ninth (or the Third, for that matter) is an inkblot, then by all means, go argue for repeal!

    Why on earth would I do that? I approve of both of them. I am pleased that soldiers are not being forcibly quartered in people's houses in times of peace, and I am glad that our ennumerated rights are not being construed to deny or disparage other rights. I just don't think they're particularly significant amendments. The most obvious reading seems to support my view.

  • Unlike that father, though, Scalia fails to alter his opinions -- even in the slightest -- based on either new information or the simple fact that people's beliefs have changed. Social mores and taboos do (and should) change as time goes on.
    We have a mechanism for handling changes in belief, social mores, and taboos. It is called the amendment process.

    To the extent that we allow prevailing wisdom to change the meaning of the Constitution over time, we might as well not have a constitution.

  • So, it's your opinion that social mores, etc., have only changed 26 times in the last 200+ years? The constitution is written in deliberately vague terms to permit flexibility. It's a set of guidelines, not a deatiled set of rules. If a document as rigid as you suggest were written, what would be the point of Congress?
    The point is that the Constitution has a built-in mechanism for handling such changes, the amendment process.

    The amendment process is difficult, and wisely so. The supreme law of the land should not be changed at the whim of current political fad. The basic foundation of our government should change only when a consensus can be reached that such a change is right.

    It is true that there are parts of the Constitution that two fair-minded people can read, and disagree on the meaning. However, I maintain that this is often less an honest disagreement than one party so wanting the the Constitution to support his view (or the prevailing social mores) that he is willing to twist its plain meaning out of all recognition. (I have the commerce clause in mind in particular.)

    If you think that the Constituion is a set of guidelines, rather than rules, I suggest you go back and read it again. There is section after section of details on how the federal government is to be structured, and what powers are granted the various branches of the federal government. And because the Founders didn't trust fallible people to stick to those powers expressly granted the government by the Constitution, there are many rules specifying things the government specifically may not do.

    To the extent that we as a people insist on the government staying within the bounds of the Constitution, to that extent we will safeguard our rights to life, liberty and the pursuit of happiness. To the extent that we allow government to act outside the Constitution, to that extent we will be at the mercy of any arbitrary whims the Congress and President can get past some old people in robes.

  • Me too...
    They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment...
    If you propose a wonderful advance in our laws and institutions that contradicts the Constitution, and it really is wonderful, then convince enough people to amend the Constitution.

    By the way, I suspect the context "amendment" in Jefferson's quote was not that of formal amendment; I was just making a lucky play on words. But the principle stands...the Constitution is a flexible document that defines itself how it may evolve through amendment. We do not need to render the Constitution meaningless by reinterpreting it to fit the fashions of the day.

  • First, let me say that I work with good folks from about a dozen European countries (and some more from Arkansas ;-). Unlike many Americans, I have been over to Europe many times in the last few years. I am open to suggestions on what we Americans could do better. But, when you or anyone else just gets pissy and insulting, you can kiss my American ass. Now that I got that out of the way...

    The thing we have most fun with is your constitution you hold so dear. It's been through more changes than an epileptic's etch-a-sketch.
    I was just maintaining on another branch of this thread that it is good our US Constitution is subject to change, via its formal amendment process. Is that what you mean? If so, I don't get the point. On the other hand, our US federal government has done many things over the years that are clearly unconstitutional to any reasonable (non-lawyer) person. I agree that is bad, and welcome any and all support in opposing it, be you American or not.

    Through this constitution you are allowed to have a gun and shoot your family and then get annoyed when the police try and arrest you.
    Yes, our Constitution recognizes the pre-existing right to keep and bear arms for legitimate use. Could you give me a reference to the part of the US Constitution that legitimizes murder (and later stupidity by being annoyed at the police for arresting a murderer)?
    Most other nations got over this centuries ago, but as you're still a ickle baby, you've got some growing up to do first. Most countries called it reform. People realise the ideas they held on to for years are way out of date, and they drop them. Maybe if you didn't spend half an hour a day saluting the American flag, you'd realise it's not all that it's cracked up to be
    I have European friends, but have never heard the term "ickle." Could you define? Anyway, call it reform if you like, but violating the rights of people is tyranny. Whether an idea goes "out of date" by the standards of a European troll is irrelevant to whether the idea is right or wrong.
    (And all that liberty and freedom stuff you go on about as if you invented it? that's available off the shelves in Europe, most of Africa, large portions of Asia, and all of Australasia)
    Anyone with just a bit of history knows that the US Founders were deeply influenced by several European thinkers. And even with the disturbing things our government has done over the years, when it comes to liberty, I'll stack the good old USA up against any country issue-by-issue. We'll lose some, but come out ahead overall.
  • You see, this is the problem with Slashdot. Someone makes a good point, I answer and I'm called a Troll. Nice'n'fair.
    I was referring to you saying you had been laughing at Americans for years, poking fun at the US Constitution, and calling America an "ickle baby." You do not see the trollishness, and just plain rudeness, in this?

    I obviously don't care as much about this debate as you do, so I won't write a 400 line response.
    Yet another mark of the troll...posting to a thread he does not care about. But anyway, perhaps others are listening, perhaps not.

    You also do not care much about accuracy...from your latest post...

    I never said it was legal to murder your family (but it is legal to murder criminals - who are someone else's family).
    ...and from the post I originally replied to...
    Through this constitution you are allowed to have a gun and shoot your family [...]
    How is that not saying it was legal to murder your family? I guess you could shoot them so that they don't die, but I doubt that is what you meant.
    What I don't get about your constitution is that you keep banging on about guns, saying they are your constitutional right and that you will never get rid of them, but your constitution has been changed 8,000 times this week alone, highlighting the point that you can just AMMEND your constitution to not allow every redneck hick to have an assault rifle.
    Here we go again. The US Constitution has been amended about 27 times (not sure about the exact number) in 200+ years. Someone in another branch of this thread is complaining about how hard the amendment process is. The US Constitution has worked remarkably well over time, to the extent that we Americans have insisted that our government abide by it.

    Yes, we could amend our Constitution to remove its recognition of the right to keep and bear arms, but I doubt that will happen anytime soon.

    We'll lose some, but come out ahead overall. Some = vietnam, racial segregation, inner-city violence, every fuckup in WW2, Kyoto, Overall = what, exactly? guns for all?

    Your rights to freedom are nothing special at all. I have rights to do whatever I want to do. But, unlike you, I don't want to run around my house with an AK47.

    To have an intelligent discussion of US liberty vs. that of another country, we will have to get specific. Did you have some country in mind?
  • Using heat is no different than seeing light. Don't try to pretend otherwise.

    Must be handy to be able to see in the dark, eh? Care to tell us where you went for the eyeball upgrade?

  • Good (Score:5)

    by shanek ( 153868 ) on Tuesday June 12, 2001 @04:43AM (#158202) Homepage
    Good that they did this, but it's disheartening that the vote was so close.

  • Re:Good (Score:3)

    by gilroy ( 155262 ) on Tuesday June 12, 2001 @05:40PM (#158207) Homepage Journal
    Wow, that evidences such a profound misunderstanding of the American system and the American public, that it's hard to know where to begin...

    The Supreme Court can nullify laws, although realistically, they don't all that often. They can review lower court actions. They can wag a finger at the other two branches. All of these are well-established in the common law of the US and well-understood throughout the legal system.

    They are not a dictatorship, firstly, because more than one speaks. More importantly, they are appointed through the elected representatives and serve under the (distant) review of the legislature. Consistent and clarion violations of their jurisdiction could -- and, probably, would -- be met with impeachment and removal. Additionally, Congress essentially controls their budget. It didn't quite work but FDR's court-packing scheme illustrates another indirect check.

    More significantly, if the Court rules in a way that fundamentally offends the American people -- that really and truly violates, in an inarguable way, the precepts of the Republic -- then the American people, through their elected representatives or directly, can amend the Constitution so as to correct the flaw. This is of course the atom bomb of judicial interventions and so is used rarely.

    Now, you might have your laundry list of rulings that "fundamentally offend". They might involve flag burning, or capital punishment, or abortion, or suspects' rights, or police powers. The Court may have ruled, at some point, in a manner inimical to your heartfelt and cherished beliefs about the core values of American civil society, and you might very well feel that they have undermined the very Republic.

    But if the country hasn't risen up to pass an amendment to support you, I would argue you're talking smoke.

    Interestingly, the poster had one thing right: The Court's power is extra-Constitutional, in that the primary power of judicial review is not (specifcially) mentioned in the Constitution. (Really. Go check. [cornell.edu]) It was argued, most successfully by Chief Justice Marshall, that such a power is implied in the mission of the Court, but it isn't stated. (This, ironically, means that even the most "strict constructionist" Supreme must, at heart, be somewhat of an interpretationalist.)

    If that's the case, how can the Court function? Because, by and large, they do a good job... good enough that the people trust them and respect their judgments. The biggest problem with the Supreme Court involvement in the election was not the decision they made. (I admit it, I think they goofed.) It was the clumsy and ill-odored manner in which they got involved.

    For me, one of the high points of American democracy and dedication to the rule of Law came during 1974. The Watergate prosecutor subpoenaed the Oval Office tapes from Richard Nixon, and Nixon refused to surrender them. He tried to bluff the prosecutor, but the prosecutor stood fast. A district court said, "Mr. Nixon, hand over the tapes." The appellate court said, "Mr. Nixon, hand over the tapes." And so he went to the Supreme Court (including a number of justices he himself had appointed) and claimed privelege. The Supreme Court said, "Mr. Nixon, hand over the tapes."

    Picture the scene: On the one hand is Richard Nixon, President of the United States of America: chief executive, commander-in-chief, the single most powerful man in the world. At his fingertips he commanded the resources of the FBI, the CIA, Secret Service, the DoD, literally millions of armed personnel. In Maryland, not too far away, was the 82nd Airborne, a mobil and elite fighting force capable of siezing a city in a matter of hours.

    Against that, stood "nine old men" clothed only in black robes and the Law.

    The President capitulated and surrendered the tapes.

    If that doesn't send a thrill down your spine, you haven't been paying attention. I say, bring on the justices and bless them for the splendid, if fallible, job they do.

  • ESP (Score:4)

    by Deanasc ( 201050 ) on Tuesday June 12, 2001 @05:40AM (#158252) Homepage Journal
    So does this mean the cops can't use their Psychic Friends anymore?

  • Even Better... (Score:5)

    by The Monster ( 227884 ) on Tuesday June 12, 2001 @06:58AM (#158271) Homepage
    ...is the logic here.

    #include <ianal.h>

    But I read the opinion. The bright line distinction is that the police used technology that the general public does not use.

    If I leave the curtains open on my windows, I have no right to expect people not to look at what can plainly be seen through them from outside my property, even through a backyard-astronomer-grade telescope, two blocks over. But I do expect to be able to speak to my wife or children and not have a TLA van train a laser on one of those windows to pick up the vibrations of our voices. They need a court order to carry out such a "search".

    Now, if we apply the reasoning to laws against "hacking", we see the absurdity of a law that presumes an expectation that people won't use technology that is plainly common in (that segment of) the public. If I put a box on the net and have a daemon listening on port 80, I have no reason to bitch about people trying to access web pages from it. It's up to me to close the curtains.

    This puts Lawn Forcement in a tricky situation: They can't (admit to) use snoop technology without a proper warrant and enforce laws against the general public using the same technology (by definition preventing it from use by the public). They have to choose one or the other. So don't be surprised if some currently-illegal private uses of low-grade spy stuff are legalized in the near future.

  • What I don't understand... (Score:3)

    by tmark ( 230091 ) on Tuesday June 12, 2001 @04:55AM (#158272)
    Part of the logic of the majority opinion was that the thermal emissions issued from inside the house in question should be private : "Americans inside their homes expect their heat signatures and other incidental emissions to be private" (quoting from the opinion reported in Wired).

    But how does these emissions differ materially from, say light bouncing off people in the midst of committing some heinous crime, while in the privacy of their own backyard, or while inside their home in front of an open window ? Should that not be sufficient for law enforcement to take action ? How about sound waves emanating from the sounds of a crime in progress ? Should those sound waves be private, too ?

  • shocking (Score:5)

    by bmj ( 230572 ) on Tuesday June 12, 2001 @04:48AM (#158274) Homepage

    i don't really understand why everyone seems so shocked that scalia would be against such searches....true blue conservatives don't want the government to have power to intrude into our private lives. private property was one the basic rights this country was founded upon.

  • And there I thought that Antonin was a pusbag... (Score:3)

    by Bonker ( 243350 ) on Tuesday June 12, 2001 @04:47AM (#158287)
    I suspect that the most important aspect of this decision will not be in home searches, but in the precidents it sets for future cases about illegal search and seizure of data. Hands off my PC, peachfuzz...

    Now, that being said, it's surprisingly easy for cops to get a warrant for anything they want to do, at least in Texas. This will only protect people from 'sweeps'. If the cops decided you're growing pot in the back room, they'll get the warrant with little or no effort, even if you're growing normal, non-skunky veggies, or have a tanning bed.

  • Comment removed (Score:5)

    by account_deleted ( 4530225 ) on Tuesday June 12, 2001 @07:08AM (#158295)
    Comment removed based on user account deletion

  • A Comment (Score:3)

    by Popocatepetl ( 267000 ) on Tuesday June 12, 2001 @04:52AM (#158305)

    Does anyone else find it disturbing that the FBI always seems so eager to do "this sort of thing" (e.g. Carnivore)? What motivates these people? They are people, by the way. The FBI is usually referred to as an entity separate from any individual, but it boils down to some people trying to spy on their fellow citizens.

    If your point of view differs from mine, try thinking about this comment as if it were sarcastic.

  • Technology not widely available (Score:4)

    by subnet-zero ( 419905 ) on Tuesday June 12, 2001 @05:32AM (#158339)
    I heard about this on NPR yesterday. They read from the text of Scalia's writeup. He laid out a general rule for future cases involving the use of technology to spy into private homes. He said that a warrant is needed for any surveillance of a private home using technology which is not widely available to the public. For instance, it is acceptable for cops to use binoculars or a searchlight to peer thru your windows, without a warrant. Some issues this "widely available" clause brings up: What is considered widely available? Just that some private citizen can buy it? Or that some percentage of the publlic can afford? If "widely available" just means that a private citizen can buy it, could not authorities instruct the tech manufacturers to make it available to the public at ridiculous prices, so that authorities don't need a warrant, while keeping the tech out of the hands of almost all citizens? How does this ruling affect the use of advanced, secret programs like Carnivore to spy on our computers? Carnivore spies on traffic thru an ISP, so it seems like it's not spying on the PC in the target's home; but the IR imager spies on the IR radiation in the air near the house; if you can't use IR tech from across the street from a house, to spy on IR radiation which emanates from the walls of a house without a warrant, can you use Carnivore or other similar programs from the ISP to spy on packets emanating from the NIC in your home PC without a warrant? Just some thoughts. Feel free to discuss them.

  • Re:In related news... (Score:4)

    by zonk the purposeful ( 444367 ) on Tuesday June 12, 2001 @05:22AM (#158343) Homepage
    Have you seen the size of an infrared scanner? That's a lot of lube..

  • Good decision (Score:3)

    by iamklerck ( 445579 ) on Tuesday June 12, 2001 @05:06AM (#158344)
    Clearly this was an excellent decision by the Supreme Court. The Fourth Amendment to the Constitution isn't very hard to understand, yet our law enforcement agencies keep breaking the rules set forth by it.

    In this case the thermal imager was being used to detect heat from lamps used to cultivate marijuana. The worst part is that our government shouldn't be telling us that we cannot use marijuana how we like. The only reason our government is in place is to protect us from outside harm and others in this country. Nowhere does it say that it should be protecting us from ourselves. Laws banning the home use of marijuana and other drugs should be repealed. It's clear the drugs do not cause violence, and that drug LAWS do cause violence.

    Not only are these laws causing violence now, but they're also causing the government to pass more and more laws that allow law enforcement to invade our privacy and strip us of our rights. There are many other high tech devices out there in use that haven't been ruled against yet. We should consider this a victory, but don't celebrate yet because there's still a long fight ahead of us.

  • So they can't look into my house.... (Score:5)

    by 4mn0t1337 ( 446316 ) on Tuesday June 12, 2001 @08:35AM (#158345)
    So this means they can't thermal scan my house for the 8 seriously overclocked servers I'm using to hack McDonalds.com in order to steal the recipe for "secret sauce"?

    Hmmmm...

    I know they have used abnormal power consumption as an indicator of pot farms (all those grow lights and hydroponics).

    So, if you factor in power consumption and heat signature, a server farm might look a lot like a pot farm.

    WORD TO THE WISE: If you are growing illegal drugs in you house, you should buy at least a T1 and connect it to your "garden." That way you can claim you are just running an internet business. And you have the added bounus of being able to FINGER the plants to see how each is doing!

    ______

  • Re:The importance of strict constructionists (Score:3)

    by Violet Null ( 452694 ) on Tuesday June 12, 2001 @05:02AM (#158350)
    You're referring to the same Justice Scalia who thinks that the police can conduct unreasonable and pointless arrests for fine-only misdemeanors, such as driving without a seatbelt, right?
    The man has some good rulings, but over the long term, I don't think I'd rejoice if another one of him was put on the court...

  • Re:What I don't understand... (Score:5)

    by Violet Null ( 452694 ) on Tuesday June 12, 2001 @05:14AM (#158351)
    It's the _expectation_ of privacy. (Most) people understand sight - you put them in a situation, and they immediately understand where they can be seen, where they can't, etc; they 'know' where they are private to do what they want. Ditto with hearing. If I'm in an area where I can't be seen by the human eye, and I can't be heard by the human ear, I have a certain expectation that that area is private. (Most) people do not worry about infrared signatures, parabolic hearing devices, or the like, and so use of those tends to violate the expectation people have to privacy.

  • Re:What sucks about this (Score:3)

    by Zen Mastuh ( 456254 ) on Tuesday June 12, 2001 @05:45AM (#158360)
    Famous lawbreakers:

    George Washington

    Thomas Jefferson

    John Adams

    Thousands of other American Revolutionaries

    Susan B. Anthony

    Mahatma Ghandi

    Jesus of Nazareth

    Dr. Martin Luther King, Jr.

    Phillip Zimmerman

    Rosa Parks

    Forgive me for forgetting that our purpose as human beings is to worship and revere the arbitrarily-chosen laws in the geographic region we happen to be born into.

  • What sucks about this (Score:4)

    by Zen Mastuh ( 456254 ) on Tuesday June 12, 2001 @05:19AM (#158361)

    The specific technology, Forward Looking Infrared Radar, has been successfully used to bust thousands of marijuana growing operations over the last few decades. These people's lives were ruined: they were arrested, imprisoned, fined, and subjected to forfeiture of their assets. Between the fines and the asset forfeiture, police nationwide have bought more helicopters, tactical weapons, body armor, dogs, and other Rambo toys--all to use against Americans in the War on (Some) Drugs.

    When a law or investigative procedure is found to violate basic Constitutional rights, the ruling should be applied retroactively all the way back to the enactment of said law or investigative procedure. Anyone caught by FLIR should have their fines reimbursed, criminal record expunged, and their assets returned--including all of the plants they were growing, down to the specific strain and height. What sucks is that this won't happen--the case just gets remanded to the lower court, who can decide in this one case whether there was any other evidence available to justify a warrantless search. Anybody who wants this applied to their case will have to hire an expensive lawyer: a ridiculous proposition for someone who no longer has a home to mortgage because it was seized.

    This WO(S)D has been nothing but a gateway to a full-blown police state. I'm hoping that this ruling marks the end of the "But Won't Someone Think of the Children???" era that characterized the 80's and 90's and launches the "But Won't Someone Think of the Constitution???" era.

  • In related news... (Score:5)

    by turbine216 ( 458014 ) <turbine216.gmail@com> on Tuesday June 12, 2001 @04:46AM (#158364)
    the same supreme court panel also voted 8-to-1 in favor of anal probing as a means of gathering evidence. personally, i'll take the infrared scanning any day.

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