January 23, 2012

Scalia again not an originalist #teaparty folks

In the Supreme Court's ruling overturning a conviction based on warrantless GPS tracking, Justice Nino Scalia drew parallels with the Constitutional Founding Fathers, saying something similar would have been considered a Fourth Amendment violation by them, in all likelihood. But, despite the fact that, as Justice Sonia Sotomayor noted, police departments could either do similar stuff with other electronic trackers OR try to get, say, cell phone companies to turn over their GPS logs of suspects who have cell phones, Scalia slinked away from extending the Fourth Amendment parallels more broadly.

In general, it seems like older justices have little conception of the pace of technological change, either.

Therefore, contra Scalia, there's PLENTY of reason to rush forward.

Under his logic, if a colonial court had been asked whether it was constitutional, under the British constitution, to tax people on stamps without representation, he would have said no, but he would have said ... we'll consider a tax on ... er ... say, tea! ... if and when it comes up.

Whether he's more a tech illiterate or a big-spy government justice, I'm still not quite sure.

That said, Sotomayor had a chance to make a bigger splash. Had she joined the concurring opinion in this case, as this story notes, she could have gotten an expanded ruling:
In a separate concurring opinion, four justices—Alito, Ginsburg, Breyer, and Kagan—criticized the majority’s approach as unnecessarily limited by "18th century" views of property. Noting that there are many services such as cellphone tracking, toll-road records, and modern cars’ onboard data recorders that allow cars to be tracked without trespassing, these justices suggested the need for a broader focus on privacy issues. In this they, like Justice Sotomayor, seem sympathetic to the D.C. Circuit’s suggestion that when the government collects a lot of bits of data about you, it’s the aggregate of the data—the mosaic that it represents about you—that determines whether there is a search, regardless of the status of any particular bit.  
Why she didn't, I have no idea. A great chance wasted.

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