OK, I have to go get ready for SCOTUS. Manage the fires without me for a bit, all.
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Incredibly interesting arguments from a very engaged court this morning about whether a warrant is required for the gov’t to obtain 100+ days of historical cell-site records for a cell-phone user.
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My first take out of
#SCOTUS — and it’s one that surprises me — is the level to which Michael Dreeben, the federal gov’t’s top criminal appellate lawyer, appeared unwilling to engage with the realities of living in 2017.Show this thread -
Dreeben is one of the best Supreme Court advocates alive today, and he’s an incredible lawyer, but, today, he just was unwilling to engage in a real debate about how the changed ways we live our lives affect privacy or property rights in new ways.
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And, I think that affected the justices as the argument wore on. While it’s clear that they’re not sure of how to resolve the case, his unwillingness to budge at all seemed to pull justices away from him, especially the Chief (and Gorsuch, perhaps), throughout the 80 minutes.
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For those not following the case, the govt’s position — one Dreeben just repeated in different forms over his 40 minutes — was: Cell-site records are a business record, so it’s not a search, so the Fourth Amendment isn’t implicated. Period.
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On the other side, the questions started off by asking about why cell-site records were more sensitive than other potentially sensitive records (bank records, phone numbers called) that the court has allowed to be collected without a warrant under the third-party doctrine.
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The questions veered basically into a debate about what the rule would be — the "what would the opinion look like" question that Breyer loves.
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Then, Dreeben got up, and just didn't engage in the debate that the justices were there to have. It was unfortunate, because this is a really big issue — and one that the justices seemed to be taking seriously.
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Anyway, I'll have more later! But, there's a first look.
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FYI: For
#lawdork folks, here's the Carpenter transcript: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/16-402_d1o2.pdf …Show this thread
End of conversation
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Freedom of Association destroyed with illegal cell phone gps data gathering. I can no longer evade police to meet my friends without leaving my cell phone at home.
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You could be questioned by the police as suspicious solely because you were near a crime without a cell phone tracking your every move.
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yeah, something tells me this isn't going to go well.
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