We need someone in the executive branch willing to enforce the constitution for anything to happen

> so obvious it’s sickening

It’s really not. The Third Party Doctrine has muddied the Fourth Amendment’s legal boundaries. The fact that a district judge originally ruled in the FBI’s favour should show that.

> Everyone associated should be fired

If they continue to think they did the right thing, sure. That’s incapacitation. But prioritising retribution isn’t helpful when restitution and deterrence are unfulfilled.

> The Third Party Doctrine has muddied the Fourth Amendment’s legal boundaries.

No, the third party doctrine was a mistake.

> But prioritising retribution isn’t helpful when restitution

I'm not sure in this case, that is what is going on. The sequence of decisions at the FBI and DOJ were so terrifyingly bad that the carriers of the ideas leading to those decisions need to be removed from the institution. They are a cancer.

One way of understanding the previous comment in light of what you've said is: the third-party doctrine is so obviously wrong it's sickening.

> 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 third-party doctrine was created by the courts, not Congress. US v. Miller and Smith v. Maryland are the typically-cited sources of 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?

No, different Miller. This one is from 1976.

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.

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.

> 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.

> We should be disgusted by injustice

Sure, do that. This isn’t that. Being “disgusted” by the Third Party Doctrine, broadly, isn’t the same as being offended by injustice.

The third party doctrine is disgustingly unjust.

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.

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.

> If they continue to think they did the right thing, sure. That’s incapacitation. But prioritising retribution isn’t helpful when restitution and deterrence are unfulfilled.

Firing would be a deterrent. Given qualified immunity, the consequences for this kind of abuse of power are small, and that's a factor in why so much of it happens.

"Fired" ?! I think you mean thrown in prison for armed robbery and conspiracy to commit armed robbery. Being unconstitutional thus illegal, these actions could not have been carried out under governmental authority. Thus these actions should be prosecuted as anyone else's would be.

I'm not necessarily a fan of creating such high stakes setups. But until these institutions are reformed around the concept of equity such that their victims are routinely and predictably reimbursed for the harms perpetrated by the institutions, we should fall back to insisting on criminal punishment for the individuals who enable them.

Yeah, but wait till you hear about qualified immunity.

I've certainly heard of it and it's one part of the cancer creating this state of societal breakdown. The concept needs to be soundly rejected. Any immunity shield should be narrowly scoped based on following written procedures. Acting within those procedures should mean that liability falls only on the institution. Acting outside those procedures should mean the institution and the agent are jointly/severally liable. One of the foundations of our society is that nobody is above the law, and government agencies need to stop being given this cheat code where they harm innocent victims and then just walk away from the situation unless it is especially egregious.

You’re preaching to the choir but the issue is that a lot of people “reject” it, and it is still an active part of American jurisprudence.

Sure, the comment I was responding to ("fired") wasn't grounded in how things actually are either. The point is if we're talking about what ought to be, then let's aim for actual reform and actual justice rather than some token firings.