SCOTUS to Determine if Your Digital Data is Private, and Thus Protected

On Wednesday, November 29, 2017, the Supreme Court of the United States heard arguments in a case that could decide whether the government needs a warrant to get digital data from your cell phone that will show where you’ve been and where you are. Beyond that narrow aspect, a ruling could potentially make available to the state all of your data you have created on a third party platform.

This case means that 9 black-robed, appointed-for-life lawyers, selected by partisans and confirmed by partisans, will be granted the power to either magically ascribe super powers to the state to collect your data without a reasonable cause (in violation of the Fourth amendment) or will simply require the government to create other loopholes to do it anyway.

The last part of that last sentence is conjecture on my part, though I have little doubt that the state, or one of its subsidiary vassals (state, county, local governments), will find loopholes in the laws to gather the data they require anyway.

Still, the degree to which the circus performance reflects an overt disregard for the individual or chooses to play the surface game of respecting the individual tells a lot about the perceived power of the state.

The more overt the state is in expressing a denial of the individual’s “rights,” the more power the state perceives it has in pursuing the taking of ‘individual rights’ territory.

This is the context with which I am interested in this court case. The ruling by the Supreme Court, even if it rules against the state, won’t, in my opinion, significantly alter the covert work the state does to track individuals it deems worth tracking, but it could significantly telegraph where the state feels it is in its ongoing effort to take back some of the ground it had once conceded to the individual.

Fighting for taking a more overt position against the individual is none other than the Trump administration itself, the administration that came into being in part because a man, Donald Trump, ran a campaign where he promised he would restore the constitution.

Donald Trump’s Deputy Solicitor General Michael R. Dreeben argued before the justices that the digital data produced through individuals using third party actors, like cell phone providers, isn’t really information the individual owns, and thus isn’t protected by the Fourth amendment.

The argument is that the government is not searching the individual’s private property, so therefore no restrictions on that ‘property’ (the data information produced through cell phone use) apply.

Justice Sonia Sotomayor seemed skeptical, but not because she disagreed with his notion of the ownership of that information. She said to the Trump team, “Most Americans, I still think, want to avoid Big Brother. They want to avoid the concept that government will be able to see and locate you anywhere you are at any point in time.”

Chief Justice Roberts actually seemed to disagree with the premise the Trump team is attempting to set, that digital data created by individuals using third party providers is information that doesn’t belong to them, and is therefore not private.

Roberts said, “The person helps the company create the record by being there and sending out the pings.” Roberts is arguing that since the user helped create the data, the data is at least partially theirs, and therefore the information is still private.

You can read more about the specifics of the case here, but the specifics of the case are not as important as what a ruling in this case will tell you about the reality of power.

It goes without saying to anyone who has a modicum of common sense, who has a deeply held belief in the importance of preserving the territorial integrity of the individual (call it individual ‘rights,’ if you wish), that the data an individual produces, even if through a third party, is still their data. Even if the individual agrees with a third party provider to allow them to have access to that data, they don’t relinquish their ‘right’ to have their data remain private to anyone else outside of that agreement.

Of course the Trump team knows it, and of course the black robed thugs on that court know this as well. This is not an authentic seeking after ‘truth’ within the framework of a standard of liberty. This is a semantic gymnastics circus which will allow for 9 black robed thugs to determine how much power the state is able to claim from the individual, overtly.

The ‘debate’ going on beneath the surface among these black robed thugs is not really about balancing out the ‘rights’ of individuals as defined by the bill of rights (the Fourth amendment, in this case) but it is about the trade-off between allowing for the surface illusion that individuals have liberty against the degree of difficulty it will create for the state to continue its mastery over the individual.

If the Supreme Court rules against the Trump administration, don’t count on not being tracked anyway. Don’t count on the court still not finding a way to make ‘exceptions’ if and when the state really needs to violate the liberty of an individual who has proven to be particularly troublesome.

What it will mean is one of two things, the black robed thugs determined that allowing for this precedent to be set will not significantly hamper the state’s ongoing efforts to hold on to its mastery over the individual, or it senses that voting in favor of giving the state this overt power against the individual could potentially produce a significant backlash.

If the Supreme Court rules in favor of the Trump team, then it means the black robed thugs have calculated that the fear of a backlash is minimal at best. Here is an opportunity to overtly take back more territory it had conceded to the individual.

Either way, don’t look for ‘truth’ or ‘justice’ in this ruling, no matter how it comes, just look to understand the reality of power you face, as reflected in how this court rules.