I think it's unfortunate that one can write for Wired, yet not even mention that the word 'privacy' does not appear in the constitution. Again, the media does a poor job of educating the public, and conveniently avoids inconvenient facts.
It's perfectly reasonable to want to have or add a right to privacy --but then the author should simply write that. No need to make this tenuous connection to FOSTA.
If we’re talking about inconvienent facts being ignored in regards to whether the right to privacy is in the constitution then we need to bring up the text of the 9th amendment, no?
I don’t know how it set the stage for Roe, but EARN IT is a privacy-demolishing act that absolutely builds on the model proven out by FOSTA/SESTA. F/S did nothing to meaningfully address sex trafficking, and that doesn’t seem to disappoint its authors. Instead, we just see more shackles being put on free expression and privacy, and more government sponsorship of criminal monopolies.
FOSTA requires you to play police and report. How is that not privacy related?
As for the Constitution and privacy, does nobody remember the Tenth Ammendment? The enumeration of rights was not exhaustive and never meant to be. To give a satirically extreme example there is no right against being flayed alive but that doesn't mean a law perscribing flaying everyone alive, not as a punishment would be constitutional! The Third Ammendment in spirit was also basically about privacy. Taxation is legal so it wasn't merely about lost rents, and also applied to houses. In times of war requiring you to let soldiers borrow your barn to keep out of the rain would be technically valid by the plain text.
The whole "not listed" argument also forgets the natural rights epistemological doctrine or conceit that all rights are pre-existing for there to be a violation of them, and something greater than the law. This helps to define the law itself as potentially wrong and serve as a call to action.
The fourth amendment is pretty broad. It is not at all an unreasonable reading of it to say Americans have an enumerated rate to privacy.
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Combine that with the fact that the precedent up until very recently took that reading, and it's not at all incorrect to argue that Americans have a constitutional right to privacy. What is digital surveillance, but a search of one's papers? It's not a police search, but the constitution predates modern policing, lending credence to the most general reading possible.
The Supreme Court is basically an extension of the Republican party now.
The fourth amendment is only as broad as it is interpreted by the nine ring wraiths of Justice.
The Supreme Court is not a political organization. The rulings being made now are a continuation of 140 years of judicial precedent that alloted states enormous latitude in instituting their own laws, and that only ended in 1937, when FDR interfered with the SCOTUS's independence by threatening to "pack the court".
Quite a number of American presidents would have told you that the Supreme Court is very much a political organization: Jefferson, Lincoln, and both Roosevelts come to mind.
> The Supreme Court is not a political organization.
They overturned a precedent from a majority opinion written in _2020_ by a sitting member of the current court, and solely because the membership of the court changed and reinterpreted the legality of it.
How else do you describe that behavior as anything but political?
> The Supreme Court is not a political organization.
As someone with a Political Science degree that includes specific study of judicial politics in the United States, let me say that this is, very much, not true, has never been true, and is just silly.
> The rulings being made now are a continuation of 140 years of judicial precedent
...that has seesawed back and forth with the political winds over time...
> that alloted states enormous latitude in instituting their own laws
Even if that was an accurate simple explanation of any 140 years of precedent some of those recent controversial decisions denied states this ability, which complicates the narrative.
But it is perfectly consistent since it did so in favor of conservative policy preferences, just like the decisions that expanded state power.
> and that only ended in 1937, when FDR interfered with the SCOTUS's independence by threatening to "pack the court".
Aside from the documentary evidence that the switch of on one justices position that ended that threat actually happened before the threat was issued, there weren't 140 years of precedent on the application of the 14th Amendment before 1937, as there was only about half that time between the 14A and 1937.
The Supreme Court, because of lifetime tenure, often doesn't quite reflect contemporary partisan divides in the way one might naively expect, but it is quite political, and often partisan.
Yea so I thibk that's a readonable argument. And I recognize this is a news article, and not like... constitutional law discussion.
But I think the real origin of this article is: the author is upset about FOSTA, a view I happen to share. But it's out of the news cycle. So he draws a tenuous connection to a current event, making it both relevant again, and stirring some telelogical history.
But the recent decisions are not really based on FOSTA, and as far as I can tell there was no legal precedent set by these acts that had anything to do with the recent decisions.
>yet not even mention that the word 'privacy' does not appear in the constitution
As if the constitution is some God-given artifact, that should dictate all legal matters in perpetuity, and anything not thought by some long dead guys in 18th century is not relevant to a modern society?
It's funny how Americans (and plenty of other groups) cling on to a thousand year old book written by some goat herders as absolute truth. Things change and even in span of few years what's true becomes a lie
A document that those self same guys said must be changed as the times changed. They felt so strongly about this fact that they went out of their way to write at least ten amendments before the document was even finished.
It has nothing to due with God or dead guys who lived in the 18th century. And yes it should govern all relevant legal matters in perpetuity unless replaced or amended through the constitutional process. I am sick of certain progressives who think it's OK to undermie constitution and other institutions because it's "hard" to do things through the democratically decided avenues. The constitution is a living document that should change over time but it should change as a result of constitutional convention process not through "creative" interpretations. There absolutely should be constitutional amenent(s) protecting abortion, digital privacy, etc.. so let's put them in there!
>The constitution is a living document that should change over time but it should change as a result of constitutional convention process not through "creative" interpretations.
But you know what else isn't explicitly supported in the Constitution and only exists through "creative" interpretation, rather than a Constitutional Amendment? The Supreme Court's power of judicial review. They literally just made it up in Marbury v. Madison.
>Do we have a right to free association? A right to body integrity? A right to death?
That should be considered by what the population wants every period (as in a democracy).
Not based on what some 300-year old guys wanted, and apocryphal court decisions, trying to decipher whether the 300-old guys idea about guns and milletias is compatible with modern-day RPGs and automatic riffles shouting up schoos, or whether privacy (which was then a default, due to the lack of dozens of later developed ways to disrupt it, and more importantly the inability to do so in a mass state surveillance scale) is a right.
According to that reading of the constitution, nothing outside of someone's legally owned property is private, so mass surveillance of all of your communications, and a full central and secret police dossier on everything about you, are fully constitutional. Just saying.
Well no, if we're being strict textual originalists about it, "papers and effects" can't cover any form of electronic communication, since that didn't exist at the time. The words "internet," "email," "cellphone" and such do not appear anywhere in the Constitution. And as we've now established, only the words that actually appear in the Constitution matter.
all the definitions I am familiar with for papers refers to 'documents'. It seems indeed that personal papers are synonymous with personal documents, thus they are an abstraction or class of thing as opposed an object made from paper.
1. Personal Papers means identification documents issued by your country, state or province including but not limited to your driver’s license and passport.
2. Personal Papers means a natural accumulation of documents created or accumulated by an individual or family belonging to him or her and subject to his or her disposition.
3. Personal Papers means nonofficial documents maintained by an individual at a place of work or on an enterprise network or equipment.
Although I certainly don't doubt this court would choose definition 1 if it so suited them, or the definition you are arguing here, I still would not believe the argument was one made in good faith.
Are your telephone conversations "documents"? Your Facetime chats?
An email is not under your control, it sits on a server of a private organization. While statutes of the government may currently protect it, are these statutes supported by SCOTUS interpretation of the constitution?
Certainly anything you say or do in public can be recorded by as many microphones and cameras as the government may choose.
Wired isn't responsible for or concerned with educating people about the US constitution. Here's how they describe themselves:
"WIRED is where tomorrow is realized. It is the essential source of information and ideas that make sense of a world in constant transformation. The WIRED conversation illuminates how technology is changing every aspect of our lives—from culture to business, science to design. The breakthroughs and innovations that we uncover lead to new ways of thinking, new connections, and new industries." [1]
I don’t like how everyone is blaming the Supreme Court for actually functioning. There is no constitutional right to abortion. They created it out of thin air in Roe V Wade, and it’s been corrected here. This pushes the regulation back to a disfunctional legislature. Focus on their failings.
This could be the turning point in society putting up with a congress that constantly abdicates its responsibility to legislate…responsibly.
The title made me wonder if they were going to include the new Houston TX ordinance that requires 360 surveillance of sexually oriented businesses with video data retained for 30 days and made available to city / cops at the drop of a dime, and no warrant required.
although the record all the things rule also includes: The rules apply to all Houston bars, convenience stores, game rooms, nightclubs, or sexually-oriented businesses.
37 comments
[ 0.95 ms ] story [ 86.6 ms ] threadI think it's unfortunate that one can write for Wired, yet not even mention that the word 'privacy' does not appear in the constitution. Again, the media does a poor job of educating the public, and conveniently avoids inconvenient facts.
It's perfectly reasonable to want to have or add a right to privacy --but then the author should simply write that. No need to make this tenuous connection to FOSTA.
As for the Constitution and privacy, does nobody remember the Tenth Ammendment? The enumeration of rights was not exhaustive and never meant to be. To give a satirically extreme example there is no right against being flayed alive but that doesn't mean a law perscribing flaying everyone alive, not as a punishment would be constitutional! The Third Ammendment in spirit was also basically about privacy. Taxation is legal so it wasn't merely about lost rents, and also applied to houses. In times of war requiring you to let soldiers borrow your barn to keep out of the rain would be technically valid by the plain text.
The whole "not listed" argument also forgets the natural rights epistemological doctrine or conceit that all rights are pre-existing for there to be a violation of them, and something greater than the law. This helps to define the law itself as potentially wrong and serve as a call to action.
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Combine that with the fact that the precedent up until very recently took that reading, and it's not at all incorrect to argue that Americans have a constitutional right to privacy. What is digital surveillance, but a search of one's papers? It's not a police search, but the constitution predates modern policing, lending credence to the most general reading possible.
They overturned a precedent from a majority opinion written in _2020_ by a sitting member of the current court, and solely because the membership of the court changed and reinterpreted the legality of it.
How else do you describe that behavior as anything but political?
As someone with a Political Science degree that includes specific study of judicial politics in the United States, let me say that this is, very much, not true, has never been true, and is just silly.
> The rulings being made now are a continuation of 140 years of judicial precedent
...that has seesawed back and forth with the political winds over time...
> that alloted states enormous latitude in instituting their own laws
Even if that was an accurate simple explanation of any 140 years of precedent some of those recent controversial decisions denied states this ability, which complicates the narrative.
But it is perfectly consistent since it did so in favor of conservative policy preferences, just like the decisions that expanded state power.
> and that only ended in 1937, when FDR interfered with the SCOTUS's independence by threatening to "pack the court".
Aside from the documentary evidence that the switch of on one justices position that ended that threat actually happened before the threat was issued, there weren't 140 years of precedent on the application of the 14th Amendment before 1937, as there was only about half that time between the 14A and 1937.
The Supreme Court, because of lifetime tenure, often doesn't quite reflect contemporary partisan divides in the way one might naively expect, but it is quite political, and often partisan.
It sure had me fooled.
But I think the real origin of this article is: the author is upset about FOSTA, a view I happen to share. But it's out of the news cycle. So he draws a tenuous connection to a current event, making it both relevant again, and stirring some telelogical history.
But the recent decisions are not really based on FOSTA, and as far as I can tell there was no legal precedent set by these acts that had anything to do with the recent decisions.
As if the constitution is some God-given artifact, that should dictate all legal matters in perpetuity, and anything not thought by some long dead guys in 18th century is not relevant to a modern society?
But you know what else isn't explicitly supported in the Constitution and only exists through "creative" interpretation, rather than a Constitutional Amendment? The Supreme Court's power of judicial review. They literally just made it up in Marbury v. Madison.
Do we have a right to free association? A right to body integrity? A right to death?
I would be very careful about conjuring up rights.
That should be considered by what the population wants every period (as in a democracy).
Not based on what some 300-year old guys wanted, and apocryphal court decisions, trying to decipher whether the 300-old guys idea about guns and milletias is compatible with modern-day RPGs and automatic riffles shouting up schoos, or whether privacy (which was then a default, due to the lack of dozens of later developed ways to disrupt it, and more importantly the inability to do so in a mass state surveillance scale) is a right.
emails are a form of document.
https://www.lawinsider.com/dictionary/personal-papers
three definitions
1. Personal Papers means identification documents issued by your country, state or province including but not limited to your driver’s license and passport.
2. Personal Papers means a natural accumulation of documents created or accumulated by an individual or family belonging to him or her and subject to his or her disposition.
3. Personal Papers means nonofficial documents maintained by an individual at a place of work or on an enterprise network or equipment.
Although I certainly don't doubt this court would choose definition 1 if it so suited them, or the definition you are arguing here, I still would not believe the argument was one made in good faith.
An email is not under your control, it sits on a server of a private organization. While statutes of the government may currently protect it, are these statutes supported by SCOTUS interpretation of the constitution?
Certainly anything you say or do in public can be recorded by as many microphones and cameras as the government may choose.
"WIRED is where tomorrow is realized. It is the essential source of information and ideas that make sense of a world in constant transformation. The WIRED conversation illuminates how technology is changing every aspect of our lives—from culture to business, science to design. The breakthroughs and innovations that we uncover lead to new ways of thinking, new connections, and new industries." [1]
[1] Bottom of the page https://www.wired.com
This could be the turning point in society putting up with a congress that constantly abdicates its responsibility to legislate…responsibly.
And not being constitutionally protected doesn’t mean it should be illegal. It should definitely be regulated.
although the record all the things rule also includes: The rules apply to all Houston bars, convenience stores, game rooms, nightclubs, or sexually-oriented businesses.
https://reason.com/2022/04/21/houston-says-businesses-must-i...
How can this even happen?