And you can go ahead and deal with that.

…because this pretty much covers it.

…and there was much (UNANIMOUS!) rejoicing:

Justices say GPS tracker violated privacy rights:

The Supreme Court on Monday unanimously ruled that the police violated the Constitution when they placed a Global Positioning System tracking device on a suspect’s car and monitored its movements for 28 days.

But the justices divided 5-to-4 on the rationale for the decision, with the majority saying that the problem was the placement of the device on private property. That ruling avoided many difficult questions, including how to treat information gathered from devices installed by the manufacturer and how to treat information held by third parties like cellphone companies.

Long story short, the government got a warrant to put a GPS tracker on Jones’ car, within the District, within 10 days of the issuance of the warrant. The government, however, slapped the tracker on the car on day 11 (eyeroll), while the car was in Maryland (DUH); Jones eventually got charged with conspiracy to possess and distribute seriously irresponsible amounts of cocaine, in violation of federal law. Jones ended up getting life in prison, but through the spin and twirl of the appellate process, ended up with his case before the Supreme Court.

The result? Shorter SCOTUS: Yes, sticking a tracking device on a piece of private property is a search. /whacks police on nose with newspaper

The majority’s opinion (the court was unanimous as to the result, but split on the reasoning) fell into line with the earlier, common law trespass approach to 4th amendment controversies, instead of the more modern “reasonable expectation of privacy approach” that was used in Katz. If that sounded like a load of legal jargon, try this snippet from the opinion:

It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted. Entick v. Carrington, 95 Eng. Rep. 807 (C. P. 1765), is a “case we have described as a ‘monument of English freedom’ ‘undoubtedly familiar’to ‘every American statesman’ at the time the Constitution was adopted, and considered to be ‘the true and ultimate expression of constitutional law’” with regard to search and seizure. Brower v. County of Inyo, 489 U. S. 593, 596 (1989) (quoting Boyd v. United States, 116 U. S. 616, 626 (1886)). In that case, Lord Camden expressed in plain terms the significance of property rights in search-and-seizure analysis:

“[O]ur law holds the property of every man so sacred,
that no man can set his foot upon his neighbour’s close
without his leave; if he does he is a trespasser, though
he does no damage at all; if he will tread upon his
neighbour’s ground, he must justify it by law.” Entick,
supra, at 817.

The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred simply to “the right of the people to be secure against unreasonable searches and seizures”; the phrase “in their persons, houses, papers, and effects” would have been superfluous.

Bravo, sir.

I love this decision. I love that the Court went back to its archaic and unsexy roots. I appreciate their willingness to not travel down the “reasonable expectation” path when they didn’t need to. Staying true to form, I agree with Justice Scalia completely. The outrage and the controversy lies in the fact that the Government went outside their warrant, trespassed on this man’s private property, tracked his movements, and then had the audacity to argue that this wasn’t a search.

Trespassed.
On.
Private.
Property.

Am I overloading on the Randian indignation yet? Yes? Good. The majority rightfully accuses the concurrence with attempting to make Katz the exclusive test for situations like these; Katz is important, but do we really need to go down that road? It’s such a simple concept-trespass. A violation of a right I fear the legal system has brushed aside in favor of sexier concepts like privacy. (Not that privacy isn’t important, but my one semester in crim pro taught me that Katz didn’t replace the protection that the common law afforded and still affords owners of private property.) What happened to Jones was classic trespassory search–more than enough to cook the cops in their own stew given the application of a little classical jurisprudence. It doesn’t hold that because physical intrusion isn’t necessary to classify the intrusion as a search, we should abandon those more formal (and dare I say, sacred) protections provided to private property.

For me, at least, the common law protecting private property is the root of all privacy law. Why can’t the government traipse onto my yard and into my house? Because it’s mine. It’s my home. It’s my space. Not yours, Government. Why can’t the government intrude upon my privacy? Same logic, different bubble. There are definite privacy concerns when it comes to GPS monitoring, but there’s no reason to skip over the fundamental violation–in this case, trespassing on a private car–when that fundamental violation is staring you directly in the face.

You can read the opinion here.

Originally seen on Beyond Clause 8

Shameless self-promotion: I helped launch, and currently serve as the Editor in Chief of, Beyond Clause 8. BC8 is an IP/tech law and policy blog based out of MSU Law. We’re staffed entirely by students, we’re completely non-partisan, and we’d love a click or two when you have the time!

Cheers, people.

See? There ARE things more depressing than our presidential prospects! Happy Thursday, readers

~A

It’s like they’re not even trying anymore:

School defends ‘Occupy’ song for 8-year-olds

A Virginia school district is defending a song allegedly written and performed by a group of third graders about the Occupy Wall Street movement that conservative bloggers are calling a form of indoctrination.
The song, “Part of the 99,” was performed by children at Woodbrook Elementary School in Albemarle County, Virginia.
A spokesman for the school system said as far as they were concerned there isn’t a controversy and called criticism of the program unfortunate.
“We really don’t censor the topics that students come up with,” school spokesman Phil Giaramita told Fox News & Commentary. “This is the first time we’ve had the lyrics of one of these songs criticized.”

In case you just nodded along with the BS that just spewed from Phil Giarmita’s maw, here are the lyrics that sprang from the mouths of babes:

“Part of the 99″

Some people have it all
But they still don’t think they have enough
They want more money
A faster ride
They’re not content
Never satisfied
Yes — they’re the 1 percent

I used to be one of the 1 percent
I worked all the time
Never saw my family
Couldn’t make life rhyme
Then the bubble burst
It really, really hurt
I lost my money
Lost my pride
Lost my home
Now I’m part of the 99

Some people have it all
But they still don’t think they have enough
They want more money
A faster ride
They’re not content
Never satisfied
Yes — they’re the 1 percent

I used to be sad, now I’m satisfied
’Cause I really have enough
Though I lost my yacht and plane
Didn’t need that extra stuff
Could have been much worse
You don’t need to be first
’Cause I’ve got my friends
Here by my side
Don’t need it all
I’m so happy to be part of the 99

That sounds like something I would have written when I was 8. Because every 8-year-old normally writes about their “yachts” and their “rides” and the ravages of unemployment. Normal 8-year-olds also use words like “content” and “satisfied”, instead of simply saying that they’re happy.

I call bullshit. Very, very obvious bullshit.

We have an organization called Kid Pan Alley to thank for this. (Don’t click the link unless you’re prepared to be subjected to Suzy Bogguss.) I went through the site, and encountered a lot of touchy-feelitude about community and diversity and embracing self-awareness. Here’s their mission statement:

Kid Pan Alley uses the group songwriting process to inspire and empower children to become creators of their own music, not just consumers of popular culture. Kid Pan Alley’s songwriting residencies and character development assemblies give children the opportunity to express their creativity and learn how thinking creatively can lead to future success, and:

Promote self-awareness and self-confidence by attaching value to the students’ creative impulses;

Help children experience creative expression as a means of embracing diversity, teamwork, and collaboration by supporting creativity as a prime skill to all critical thinking and problem-solving;

Help children learn and increase their ability to learn. Kid Pan Alley addresses national learning standards in the areas of creativity, music, English, performance, and connects to other areas of learning including History, Civics, Science, and Health. We think this is one of the most important outcomes of our program.

Promote community awareness of the arts as essential elements of instruction in the lives of children; foster collaboration between students, teachers, administrators, artists, and the community through working together in a creative process.

Teach respect for intellectual property. Children who have written their own songs have a first-hand understanding of the negative effects of “pirating” on creators and their communities;

Raise funds for more arts enrichment programs through sales of professional CDs of Kid Pan Alley songs.

Okay, fine. Go be creative; I’m creative too. I’ve been a musician since I could pick up a trumpet, and it did me good. “The arts” are great, but “the arts” under the influence of a “facilitator” (that’s what the program leaders call themselves) has the potential to go off the rails, as is evidenced by what happened in Albemarle County.

The site itself says that the “facilitators” (HERR FACILITATOR!) give the kids as much creative license as possible when it comes to writing these songs; the kids can write about anything, from school, to family, to “social issues or events in the world around them.” In Todd Starne’s article over at Fox, he mentions that the songs produced through this program aren’t allowed to promote a personal or political agenda. Kid Pan Alley’s reaction to the uproar surrounding the song in question?

“This was written four months ago,” he said. “And I think this particular issue of the Occupy movement was being looked at in a different way than it is today.”

Wrong. If you’re going to put the skids to ideas that involve personal issues or politics, you have to put the skids to all ideas that involve personal issues or politics. The Occupy movement was a political movement long before all the raping, murdering, rampant drug use, public defecation, and shameless violence got bad enough to annoy Tony Villaraigosa. This song should never have happened, and Kid Pan Alley, as well as the Albemarle County schools, should be held responsible.

I’m all for creative expression; a year ago, I participated in a clinic where I instructed young journalists about their free speech rights in school. I am vehemently anti-censorship in schools, but I put that vehemence on the shelf when it comes to school-endorsed activity–especially when the school (or its agent) uses the students as a conduit for a particular sociopolitical message.

This was inappropriate, but what’s even more inappropriate is the complete lack of accountability on the part of either the school or Kid Pan Alley. In today’s education system, it’s unreasonable for parents to expect judgment on the part of teachers and administrators, and it’s even more unreasonable for those same parents to expect their children to exit the public K-12 system unscathed by liberal propaganda. I’d like to see what would happen if a student wanted to write a song about a bootstrappy small businessman whose life goal was to stitch American flags and teach people about liberty; I’ll bet it would be classified as “hate speech,” and the student suspended for marginalizing Mexicans. Or something. Whatever–you get my point.

As far as Albemarle County is concerned, the damage has already been done; but for all you parents out there, consider this yet another example of the corruption, indoctrination, and plain old dishonesty inherent in the government school system.

(h/t Todd Starnes,by way of Weasel Zippers)

Then, forget all about the IA Caucus mess at 10 EST with The Snark Factor, where Fingers, Tom LaDuke, and I will all pour a big drink and prepare to ignore Iowa for another four years.

I’ll be cheerleading for Rick Perry…what say you, America?

To be honest, it’s really not that big of a deal. The view is very nice from where I sit–lots of powerful men in suits.

I went into undergrad thinking that I was going to be an engineer; that dream was squashed by the realization that I have a personality. Maybe it was my personality that got me in trouble with the professors–the world may never know. What I do know is that I was the victim (/clutches pearls) of misogyny and sex discrimination for the first time at the tender age of 18. I’m not saying it wasn’t understandable; it’s got to be weird for these lifetime engineers to all of a sudden be dealing with an increased concentration of female brain power. But what wasn’t understandable was for me to be sent out of a professor’s office not because our conference was over, but because there was a male student waiting. What wasn’t understandable was being blatantly–we’re talking, the “make eyecontact and pointedly look away” type of blatantly–ignored in class while the male students were favored. The assignments turned in by female students were graded more harshly, and the grades of female students trended lower than those of male students.

It sucked. I dealt with it because I thought I wanted to be an engineer. Nobody ever died of chauvenism, right?

In law school, I discovered a different brand of misogyny. It’s quieter. Over the past two and a half years, I’ve come to the conclusion that I have to modify my personality both in the courtroom and the negotiation table; the first advice I was given when I was selected for membership on the moot court board was, “don’t come across as a bitch.” At an interview, I would never be caught dead in pants, much less shoes without at least a two inch heel–and that’s pushing the envelope. Wear a skirt, but not too short. But not too long. Wear heels–height matters. Be assertive, but not too aggressive–you might come across as a rabid feminist. That’s okay behavior for your worthless (yes, worthless) “Gender in the Law” class, but not for a true professional setting.

Also sucky? I guess it depends on how you look at it. I don’t particularly mind playing the part. When it comes to percentage of female partners, comparative income between male and female associates, and other statistics like that, though, things look bleak. Having to stack my resume has been exhausting. And yes, it is annoying to know that I will potentially make 73% (or whatever the latest statistic is) of what my male colleague makes; but all of that pales in comparison to what happens to women in the other three corners of the globe:

For Saudi women, progress comes slowly, and not at all surely

Women in Saudi Arabia won a small but promising victory this year. No, they aren’t being allowed to drive; that’s still forbidden. Most of the time, they still can’t work, travel or even open bank accounts without the approval of a male guardian. But they do have this: Saudi women can now buy lingerie in stores from female salesclerks, instead of the sometimes leering men who used to staff the counters. If this modest wave of liberalization continues, they may even get fitting rooms.

It doesn’t sound like much, but in the glacial process of modernization in the tradition-bound kingdom, it’s an important step. “This is the beginning of a real social change,” Eman Nafjian, one of the new generation of Saudi women’s activists, told me over coffee in Riyadh, the capital, last week. “It will allow more women to work in shopping malls. And that’s a step toward more opportunities for women’s employment in general.”

…and then I thought about how many stupid times a day women in America bitch and moan and complain about “equal rights.”

That’s not to say that income disparity between men and women is right, or that men should be able to discriminate against the women they work with. I’m not saying that at all, so read the rest of this post before you scroll down to the comments and start making asinine accusations. What I’m saying is that America at large should be appalled at the attitude regarding gender disparity in the west, because it is nothing–nothing–compared to what women in Saudi Arabia are put through on a daily basis.

At least in America, women have certain rights. We have the right to choose to use birth control. We have the right to choose an abortion. We are a suspect class. When these rights are unconstitutionally violated, I fully support a woman’s right to protest that violation–even when it comes to contentious issues like abortion. (If you want to get rid of a thing, you have to get rid of it within the confines of the law.) It’s wrong for an employer to pay a woman less than he would pay a man. It’s wrong for someone to treat people differently based on gender. It’s wrong for a man to feel justified in slapping me on the ass when we’re on our way into the courtroom.

But it’s also wrong for women in this country to act like lives are lost on a daily basis due to the sexism of our patriarchal overlords. There is a great difference between legitimate sex discrimination, and legitimate idiocy. There is a difference between sexual harassment, and men behaving like boys. There is a difference between traditional gender roles and gender repression. If you have to look for the injustice, it probably isn’t there–and that’s what I’m seeing in today’s society. Women–and some men, for God only knows what reason–looking for injustice. Looking for unfair treatment. Looking for a reason to point the finger and cry foul.

Looking for a reason to play the victim.

Women in Saudi Arabia don’t have to look for a reason to play the victim; they don’t have to sift through the evidence to find injustice–it’s all around. They wear it over their faces; it comes with them when they want to venture out into public. It is ingrained into their collective psyche. That ingrained, inherent injustice gives me perspective. The next time I cuss (not under my breath) about how uncomfortable my Spanx are, or how annoying it is to have to flirt without flirting just to insert myself into a conversation at a professional event (most of which feel like very a very vanilla version of Henry VIII’s court), I’m going to keep those women in mind. I’ll keep them in mind the next time I’m tempted to not force myself to go to an event on “raising awareness” about “women’s issues”; “raising awareness” is fine, but the women of Saudi Arabia who have decided to fight repression have inspired me to not only attend those events, but to stand up and ask these feminists what “raising awareness” really means. We all know about gender inequality–anyone who denies its existence either lives under a rock, or in a state of complete pigheaded denial–so what good does “raising awareness” do when we already know all about the thing we’re supposedly being made aware of?

It’s pointless, really.

American women–especially highly educated American women–who sit around with the goals of “raising awareness” and “exacting change” should be absolutely ashamed of themselves. How ridiculous we must look to the women of Saudi Arabia, whose only method of “raising awareness” is to do something brave, something that could end in arrest or public humiliation. Our enthusiasm for and embrace of the power of mental masturbation not only wastes time, it cheapens the movement. Protesting a simple request to not whip out a breast in public is not brave. Protesting a minor’s inability to pump unnatural levels of hormones into her system unsupervised is not brave. Staging estrogen-infused freakouts over nonissues is not brave–it is shallow, attention-seeking blog fodder.

Women in America fight over these issues because they are women. Womanhood is a very big deal to these people; you’d think having a vagina and a pair of breasts was something inherently special and rare. We fight because we are women, we argue because we are women, we go to work on “the issues” because we are women. Women women women. WOMEN. Sacred feminine. We are strong, we are equal, and we need special rules!

O.o

I’d like to challenge the women of America to take a look at the women of Saudi Arabia, or Bahrain, or Afghanistan, and do something truly brave. If you’re going to fight injustice and expose inequality, don’t do it because you’re a woman. Do it because you’re a person. Do it because the woman behind the veil is a person. Do it because the junior associate working late again is a person. Do it believing that personhood for all is more important than an overarching liberal agenda, or don’t do it at all.

Let’s make Kyle Stibbs famous, so I can buy his album