Wednesday, June 1, 2016

Third Party Doctrine of Warrantless Search and Seizure Leaves Out Rights & Privacy Guaranteed to Us

Staff Writer, DL Mullan
Government / Corporate Spying

The premise for unconstitutional court judgements against the American People is called the Third Party Doctrine. This legal theory states:
a legal theory for which makes the argument that consumers who knowingly and willingly surrender information to third party companies, corporations, services, and the like have “no reasonable expectation of privacy” in that information — regardless of how much information there is, or how revealing it is.
To summarize: if you buy a cellular phone, activate the phone through a cellular phone service, and use applications, you have knowingly and willingly just given up all your rights, especially when it comes to government spying.

The Fourth Circuit Court agrees with the Supreme Court. Of course the case the lower court is referring to is Smith vs. Maryland.
The telephone company, at police request, installed at its central offices a pen register to record the numbers dialed from the telephone at petitioner's home. Prior to his robbery trial, petitioner moved to suppress "all fruits derived from" the pen register. The Maryland trial court denied this motion, holding that the warrantless installation of the pen register did not violate the Fourth Amendment. Petitioner was convicted, and the Maryland Court of Appeals affirmed.
A competing legal idea is called: The Mosaic Theory of the Fourth Amendment. This legal theory argues the fundamentals of privacy.
In United States v. Maynard, 4 the D.C. Circuit introduced a different approach, which could be called a "mosaic theory" of the Fourth Amendment.' Under the mosaic theory, searches can be analyzed as a collective sequence of steps rather than as individual steps. 6 Identifying Fourth Amendment searches requires analyzing police actions over time as a collective "mosaic" of surveillance; the mosaic can count as a collective Fourth Amendment search even though the individual steps taken in isolation do not. 7 The D.C. Circuit applied that test in Maynard to GPS surveillance of a car. The court held that GPS surveillance of a car's location over twenty-eight days aggregates into so much surveillance that the collective sequence triggers Fourth Amendment protection.
The Mosaic Theory asserts that a small piece can be placed under the idea of the Third Party Doctrine, but when the data mining is so evasive and inclusive of a bulk operation that the Third Party Doctrine can no longer justify that type of invasion of privacy.

All legal mumbo jumbo aside, Americans have the right to privacy. If an American uses services from a provider that does not mean a person "consents" to warrantless searches. 

Let's review the Fourth Amendment:
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.
In the 1800's when this Amendment was written and ratified, the Founders of our nation did not have telephones or cellular phones. However the phrase: "the right of the people to be secure in their persons, houses, papers, and effects" should cover all avenues of corrupt government segues into a person's privacy.

Cornell Law explains the Fourth Amendment as such:
The Fourth Amendment originally enforced the notion that “each man’s home is his castle”, secure from unreasonable searches and seizures of property by the government. It protects against arbitrary arrests, and is the basis of the law regarding search warrants, stop-and-frisk, safety inspections, wiretaps, and other forms of surveillance, as well as being central to many other criminal law topics and to privacy law.
So let's breakdown the legal arguments and understand what the American People expect from our Supreme Court. 

First off, if a person under investigation gave some paperwork to a friend, then the police would need a warrant to search that friend's home because there is an expectation of privacy of both parties: the target and the friend. 

If a person left a laptop full of criminal dossiers in an abandoned warehouse, wouldn't the police have to execute a search warrant in order to retrieve the laptop? 

Yet legal wolves will argue that corporations have a contract to provide services and the "contract" makes privacy obsolete. No it doesn't, boys and girls. The Constitution and Bill of Rights are the highest laws of the land. In this country, we should hold all court cases and "contracts' up to that light. 

If a court decision or corporate contract does not hold up our rights, then those decisions or contracts should become null and void.  

I can hear the "but" now... but corporations are not the government. The corporations are doing the government's bidding without holding up the law with any due process of law, including the weight of probable cause. A court order has not forced a corporation to hand over private information, so therefore, the corporation has become a government agency or entity. 

And legal scholars you have forgotten that the United States of America and all departments, agencies, and bureaus under its auspice are corporations, so please tell me I am wrong.

The lower courts and Supreme Court appear to not understand the Fourth Amendment when it comes to the complicity of corporations and government. Assisting the government commit warrantless access to private information is a joint effort on the part of government and corporations to violate the rights of the People. 

If the government pays for the corporation's complicity, that makes the corporation an agency, or arm, of said government. That means spying on the People with corporations and foreign governments is a violations of privacy, rights, and our Fourth Amendment.

This conclusion is not difficult to deduce. It seems only difficult to side with the Constitution, Bill of Rights, and the People when corporations and government want to create a hostile environment for which privacy is concerned.

Source: Intercept, Justia, Repository Law, Cornell Law