Law in the Internet Society

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JuanPaoloFajardoSecondEssay 10 - 14 Feb 2016 - Main.EbenMoglen
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"U.S. Surveillance Through Bulk Metadata Collection: Exploiting the Weakness of Fourth Amendment Jurisprudence"

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The basic thesis here is that there's a conceptual gap to be filled, so that correct judicial decisions can solve a Fourth Amendment problem being diagnosed in the first half of the essay. For reasons that those taking the other half of the course will now understand, I personally disagree with this framing. I think the problem of the Fourth Amendment's poor fit to our circumstances is insoluble, and lies not in some incorrect decisions but in the fabric of the right itself.

So what I don't actually find here is the matter that would respond to my objection: what's the constitutional basis for altering any of the doctrine—from the distinction between telephone call content and call connection data, that between data left with third parties in the course of market transactions for goods or services and that maintained by the person herself, that between circumstances of prosecution and circumstances of non-prosecutorial investigation—that is admittedly reducing the Fourth Amendment's relative scope of influence? Don't the words mean substantially what they always have meant? In which ways has what was always reasonable become unreasonable?

 
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Revision 10r10 - 14 Feb 2016 - 20:27:26 - EbenMoglen
Revision 9r9 - 01 Feb 2016 - 09:28:39 - JianingLiu
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