Warrant means an audit trail and coordination with a prosecutor and the judiciary.
That's a good thing, as it creates a virtuous cycle. There is accountability and more transparency, vs an internal process where the whims of an official, or a failure to have adequate controls inevitably leads to problems.
The case that went to trial here had coordination with a prosecutor and the judiciary - they got a court order under the federal Stored Communications Act. So I don't really think this will have any of the effects you expect.
I'm completely on board with this ruling; the 3rd party doctrine is complete garbage in the digital age, but I think it will have a much narrower effect.
I also don't think this ruling will have any effect on mass surveillance that is justified on a completely different legal basis.
It is my opinion that just having to ask a judge for a warrant makes law enforcement officers do a lot more work than if they could just invade someone's privacy as a matter of due course. I don't think I've heard of any judges getting fired for issuing too many warrants, but judges occupy a special place in our society: they are people learned enough in the law of the land that we invest in them the power to adjudicate disputes. The assumption is that the judges hold themselves to a higher standard.
> Warrant means an audit trail and coordination with a prosecutor and the judiciary.
But depending on the workload of these people, this can also mean a whole lot of back-log and result in hasty decision making.
Germany has a similar trend where judges are supposed to issue warrants for pretty much everything, like searching your house.
The problem in actual practice with this is that German judges are already overloaded with all kinds of work, which means they have on average around 3 minutes to process a search-warrant request, that time also includes writing the explanation for why it was denied if it should be denied.
3 minutes isn't a lot of time and getting it wrong can have pretty hefty consequences for the wrongly accused because these days it's often routine to confiscate all the IT hardware and any data media they find.
If you are somebody who's self-employed and working in IT, such a search could literally be the end of your business, because it will be years (and many lawyer fees) before you get your stuff back, even if it turns out you never did anything wrong.
Maybe I'm failing to see your point, but wouldn't removing the requirement for a judge to look at it, no matter how hastily that decision is made, further reduce the barrier to a false search? Or are you saying it pressures the judges into making hastier decisions in larger cases that would not fall under this decision because of the volume of smaller cases?
I'm trying to say that checks&balances are great, at least as long as there's no bottleneck in the whole process because that usually leads to overspill of some kind. For example, judges feeling pressured into rubberstamping due to the heavy workload.
I don't really see any real solution to this that doesn't involve either law enforcement toning down the number of requests for warrants or jurisdiction needing to expand its capacities, to allow judges more care in checking individual warrant requests.
Could you expand on the "virtuous cycle" theory? I was thinking that the coordination between law enforcement, prosecution, and the judiciary creates not virtue but mutual trust, which is much worse.
Administrative action happening within the context of any executive branch administrative unit that impacts civil liberties is always fraught with risk.
It is a vicious cycle as the public has no way to actually find out about bad actions or negligent actions. Public officers in a bureaucracy have broad discretion to implement or ignore controls and are minimally accountable.
In the actual justice system, law enforcement, prosecution and judiciary all have different interests and all have formal process for interaction. For the most part, we know how many warrants are issued, because of court filings. In most cases, state/local prosecutors are elected officials directly subject to the consent of the people. In many cases judges are as well.
That's not to say that the justice system is wonderful and perfect. There's a balance between your privacy and the public interest to prevent crime. We also have things like civil forfeiture that are problematic. But for the most part, we don't have the police feeling empowered to randomly search our cars or homes, because of the legal protections re: search and seizure and the warrant process. That was happening with cellular phones, and this judgement will help eliminate the practice.
That's a good thing, as it creates a virtuous cycle. There is accountability and more transparency, vs an internal process where the whims of an official, or a failure to have adequate controls inevitably leads to problems.