Computers, Privacy & the Constitution

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MayuArimotoFirstPaper 3 - 30 Apr 2017 - Main.EbenMoglen
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Why is one district court's decision on the issuance of one search warrant worthy of 1,000 words of analysis? At most, one trial court's decision on one warrant would be a matter for a single citation, and my guess is that one could have found hundreds of such decisions. Nor is the All Writs Act relevant to the constitutional questions you are considering, because the statute can have authorized no conduct that the Constitution would not permit. On the other hand, your constitutional analysis proceeds without the invocation of any precedent whatever, as though the constitutional law of this situation depended on your logic alone. What are the relevant Fourth and Fifth Amendment cases, and how do they apply here?

So the route to improvement is clear enough. Let's get away from one trial court decision to a general statement of the problem, which you have already present in a succinct enough form. Then we can be asking the questions in light of the Supreme Court's actual decisions. Could a warrant call for the blood testing, or the genetic material collection, of everyone at a crime scene? If not, why not? When is it a Fifth Amendment violation to require by way of search warrant that the owner of a phone be identified by collection of a fingerprint that will open it? What do cases about other forms of "testimonial identification," as in the control of business records or the provision of safe combinations, tell us? Does the Constitution allow methods of search for evidence that decays quickly on its own that would not be allowed for more durable materials?

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Revision 2r2 - 22 Mar 2017 - 21:15:31 - MayuArimoto
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