Judicial Precedent Disadvantage



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Judicial Precedent Disadvantage

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This is a DA that links to Courts Affs that rule on the 4th Amendment. The DA is based off of the third-party doctrine (a judicial precedent from Smith v. Maryland that established that there is no reasonable expectation of privacy when you give data to a third party). This DA argues that the plan overturns the third party doctrine, the current justification for mass surveillance, and that the third party doctrine is necessary to stop child pornography and crime.


This DA is net-benefit to the SOP CP.
- Ali, Arjun, and JJ

1NC

1NC Shell — Judicial Precedent DA

[THE FIRST/NEXT OFF-CASE POSITION IS THE JUDICIAL PRECEDENT DA]

First, the third-party doctrine precedent is at a tipping point — recent cases prove


Sheehan 15 — Tim Sheehan, J.D. Candidate, Georgetown University Law Center (2015); B.F.A. from New School University (2009), 2015 (“Taking the Third-Party Doctrine Too Far: Why Cell Phone Tracking Data Deserves Fourth Amendment Protection,” Georgetown Journal of Law and Public Policy (13 Geo. J.L. & Pub. Pol’y 181), Available Online to Subscribing Institutions via Lexis-Nexis)

[*197] V. THE SUPREME COURT'S RENEWED FOCUS ON THE NORMATIVE ANALYSIS



This section analyzes the Supreme Court's recent decisions in United States v. Jones n136 and Riley v. California. n137 Although the Court has not directly decided whether CSLI is protected by the Fourth Amendment, Jones and Riley show that the current Court is serious about crafting constitutional rules to account for shifting societal norms, and more pointedly that a majority of the Justices appear willing to reconsider the third-party doctrine altogether. Jones is notable for the concurring opinions of Justices Sotomayor and Alito, which seriously challenged the continuing viability of the third-party doctrine and show that the Court is willing to reassess old precedents in light of new technologies. n138 Riley is significant because it shows the Court's willingness to treat evidence gleaned from cell phones as categorically different, given the wealth of information that modern cell phones reveal. n139

Second, ruling on the 4th Amendment necessarily overturns Smith and the third party doctrine — only current legal justification for mass surveillance


Donohue 15 — Laura K. Donohue, Professor of Law, Georgetown University Law Center, Director of Georgetown’s Center on National Security and the Law, and Director of the Center on Privacy and Technology, writes on U.S. Constitutional Law, American and British legal history, and national security and counterterrorist law, currently working on The Future of Foreign Intelligence (Oxford University Press, 2015), focusing on the Fourth Amendment and surveillance in a digital world, A.B., Dartmouth; M.A., University of Ulster, Northern Ireland; Ph.D., Cambridge University; J.D., Stanford, 2015 (“Bulk Metadata Collection: Statutory And Constitutional Considerations,” Harvard Journal of Law & Public Policy (37 Harv. J.L. & Pub. Pol'y 757), Available Online to Subscribing Institutions via Lexis-Nexis)

In Smith v. Maryland, the Supreme Court held that a pen register placed on a telephone line did not constitute a search within the meaning of the Fourth Amendment, because persons making phone calls do not have a reasonable expectation that the numbers they dial will remain private. n478 The key sentence from the decision centered on the customer's relationship with the telephone company: "A person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." n479 It is this sentence that spawned what has come to be known as the "third party doctrine." n480

The government relies on this opinion and the resultant third-party doctrine to argue that the telephony metadata program is constitutional. In the DOJ's August 2013 White Paper, it suggests that a Section 215 order is not a search because "the Supreme Court has expressly held participants in telephone calls lack any reasonable expectation of privacy under the Fourth Amendment in the telephone numbers dialed." n481 In ACLU v. Clapper, the government again cited to the Court's reasoning [*867] in Smith v. Maryland that, even if a subscriber harbored a subjective expectation that the numbers dialed would remain private, it would not be reasonable because individuals have "no legitimate expectation of privacy in information" voluntarily turned over "to third parties." n482 The government suggested that because courts subsequently followed Smith to find no reasonable expectation of privacy in the sending or receipt of e-mail and Internet protocol addressing information, as well as subscriber information, "Smith is fatal to Plaintiffs' claim that the collection of metadata records of their communications violates the Fourth Amendment." n483

Judge Eagan similarly relied almost exclusively on Smith v. Maryland in her August 2013 opinion: "The production of telephone service provider metadata is squarely controlled by the U.S. Supreme Court decision in Smith v. Maryland." n484 She reasoned that because customers are aware that telephone service providers maintain call detail records in the normal course of business, customers assume the risk that the telephone company will provide those records to the government. n485 That information was collected in bulk was of no consequence: "[W]here one individual does not have a Fourth Amendment interest, grouping together a large number of similarly-situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo." n486

Third, the third-party doctrine is key to investigating child pornography — IP address tracking


Kerr 10 Orin Kerr, Professor at George Washington University Law School, JD from Harvard, M.S. from Stanford, BSE from Princeton, 2010 (“Applying The Fourth Amendment To The Internet: A General Approach,” Stanford Law Review, Available online to subscribing institutions via Lexis-Nexis, Accessed 6-26-15)

The only Fourth Amendment fact pattern that courts reached concerning Internet investigations before 2007 considered the disclosure of basic subscriber information for Internet users. This has proved to be a recurring issue in child pornography investigations: in these cases, investigators learn that an individual has been using a specific Internet account or Internet protocol (IP) address to distribute or seek images of child pornography. Investigators then subpoena the Internet service provider (ISP) associated with that address to obtain the name and home address associated with that account, and they use that information as part of the probable cause to obtain a warrant to search the home associated with the address. n75 After a search warrant reveals contraband images and leads to charges, the defendant challenges the collection of his home address. Courts began to decide such cases in the late 1990s and have uniformly concluded that the Fourth Amendment does not protect it. n76 This conclusion did not require any intellectual heavy lifting, however: it has been long established that the Fourth Amendment doesn't apply to basic subscriber information for telephone accounts, n77 Western Union accounts, n78 and other [*1027] similar third-party accounts, and it is difficult to articulate a reason why the name and address of an Internet account should receive a different rule.

Finally, if child-pornography elicits a strong emotional reaction from you, that’s a reason to prioritize stopping it—any other system is morally indefensible


King 7 Peter King, Professor of Philosophy at Pembroke College, Oxford, PhD from Oxford, 2007 (“No Plaything: Ethical Issues concerning Child-Pornography,” Ethical Theory and Moral Practice, November 30, Available online at http://www.jstor.org/stable/40284244, Accessed 6-29-15)

The emotional reaction to such a suggestion will surely be appalled rejection, similar to the reaction to the consumer of rape-type child-pornography. As I explained in Section 2, as an objectivist I take our emotions to be at the heart of morality; if the utilitarian really were to suppress her revulsion and apply a bloodless principle, then something would have gone badly wrong with her utilitarianism as a moral theory. Mill addresses a similar criticism in Utilitarianism:

It is often affirmed that utilitarianism renders *[people] cold and unsympathising; that it chills their moral feelings towards individuals; that it makes them regard only the dry and hard consideration of the consequences of actions, not taking into their moral estimate the qualities from which those actions emanate. (Mill 1861, chap. 2, f20)



Our emotions cannot be ignored without losing part of the heart of morality. Also at the heart of morality, though, is reason; it is essential to establish grounds for our condemnation of the consumer of the material in question - that is, to show that our emotional response has the right origin and the right relationship with our rational nature.12 What are the available approaches here?



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