> the third-party doctrine is so obviously wrong it's sickening
Perhaps I’m overindexing on the term “sickening,” but it seems unhelpful to bring an emotion like disgust into a technical legal discussion.
Where one has (and doesn’t have) a reasonable expectation of privacy isn’t trivial. I think it’s obvious that a cop who recognizes a fugitive in public is acting reasonably while the same cop doing a facial-recognition search at a public school parking lot may not. Where does searching public Twitter photos lie? What if they’re only accessible with a login?
If you can’t tell, I think the third-party doctrine as presently interpreted is wrong. But the history leading up to it is incredibly reasonable, recent and well documented.
> I think it’s obvious that a cop who recognizes a fugitive in public is acting reasonably while the same cop doing a facial-recognition search at a public school parking lot may not. Where does searching public Twitter photos lie? What if they’re only accessible with a login?
There are some pretty obvious and reasonable lines we could draw here. For example, is the thing available to the general population, or only to specific parties who haven't chosen to make it public?
This doesn't necessarily answer your question, because you might e.g. have a reasonable expectation that data which is ephemerally available to the general population is not being recorded en masse and indexed into a central database, but it provides a boundary that would have eliminated a large swath of the trouble.
> some pretty obvious and reasonable lines we could draw here
I agree. The problem is we have, on one hand, the police absolutists, and on the other hand, people who want to express their outrage more than do anything real. Neither bothers educating themselves on the legal merits of the other side’s. Both turn the Third Party Doctrine into a totem.
The Third Party Doctrine was created by Congress. Barring SCOTUS overturning half a century of law (again), that means the Congress must remake it. The lack of a popular alternative directly leads to the Doctrine’s persistence. We could draw these lines. But we don’t because we’re too busy expressing conniptions.
The main purpose of constitutional protections is to bind Congress. Regardless of whether Congress is inclined to fix it, they couldn't really fix it anyway (short of a constitutional amendment), because otherwise the next time there is a crisis the Fighting Evil with Evil Act gets passed and undoes it.
Is this the same Miller where the courts ruled in a case against an undefended dead guy that NFA, which now is amended to outlaw registry of new automatic weapons, was constitutional because it was just a revenue collection law and preserved right to military-type weapons?
A third Miller was involved in the free speech case, Miller v California in 1973, that resulted in the "Miller test" for obscenity which is pretty much the law today.
> Perhaps I’m overindexing on the term “sickening,” but it seems unhelpful to bring an emotion like disgust into a technical legal discussion.
When true is redefined to false, it tends to raise emotions to a high level. Injustice often results in people's lives being disrupted and ruined where the ruin never should have happened. We should be disgusted by injustice.
It isn't trivial, but the lines have been drawn in wildly bizarre places. NBD if the cops fly a helicopter over your house to try to spot weed plants in your backyard behind a fence and no trespassing signs, for example. NBD if your communications are only likely to have been swept up by the NSA and you aren't able to prove that it has happened. And on and on.
Why tho? Judges have used emotional words in decisions for centuries. It is disgusting and abusive of what should be both logical and common sense upon reading the most basic rights we have in the Bill of Rights. Emotion has a place in life as well as much as cold hard logic.
