The Fourth Amendment Needs Some Judicial Tinkering In The High-Tech Arena
Lindsay Marie writes at FEE about Ross Ulbricht and the Silk Road case:

On June 28, 2018, the Supreme Court (Court) denied a petition by Silk Road founder Ross Ulbricht that would have forced the Court to address where government surveillance and the Fourth Amendment intersect online.

34-year old Ulbricht, who is currently serving a double life sentence for a non-violent crime petitioned the Court to review his case; specifically, whether the evidence used to arrest and convict him was seized constitutionally or not.

The evidence in question was obtained through warrantless government surveillance of the wireless router in his private home. The Court's refusal to review Ulbricht's case affirms an outdated legal precedent that essentially nullifies the Fourth Amendment in the age of the Internet.

Warrantless government surveillance of the wireless router in his private home.

Okay, so you're no kind of kingpin. But the police can want to "get" someone for all sorts of reasons -- like as a pawn to "get" somebody else.

This affects all of us.

The government used a "pen register" -- sans warrant -- to spy on Ulbricht's communications:

A pen register records outgoing data from devices such as telephones, computers, and email accounts. Conversely, a trap and trace device collects the incoming data. Together, they are known as a "pen/trap." Authorization under the ECPA does not require probable cause, just merely the belief that the information "likely to be obtained" would be "relevant" to an ongoing investigation. The government obtained the authorization, and they remotely and secretly applied a pen/trap to the wireless router in Ulbricht's living room.

The pen/trap that was secured without a warrant or showing probable cause allowed the government to isolate and identify the Media Access Control (MAC) address of Ulbricht's laptop. Using that MAC address, the government once again sought another pen/trap, this time to be applied to Ulbricht's laptop. Once again, the government was awarded the authorization without showing probable cause and without a warrant. Two weeks later, the government's constant warrantless surveillance produced enough evidence to secure an arrest warrant for Ulbricht. Although Ulbricht was just the founder of the website and not one of the individuals creating accounts to buy and sell drugs, the government charged him with numerous counts of drug trafficking and other related offenses.

Ulbricht's legal team motioned for the suppression of the evidence collected via the pen/traps as it was obtained without probable cause and without a warrant. The district court denied the motion based on a legal precedent called the third-party doctrine set in the late 1970's in Smith v. Maryland. In Smith, the Court looked at if government conducted surveillance on Smith's landline telephone through a pen register, that was obtained without a warrant, violated his Fourth Amendment rights. The Court held that since Smith voluntarily shared information with a third party, the telephone company, by dialing phone numbers, that he had no expectation of privacy.

This is just insane. And should be of concern to all of us.

The Court's decision doesn't just leave Ulbricht in prison; it also leaves in place the third-party doctrine as the legal precedent for cases involving warrantless government surveillance and the internet. Until the Court decides to take up a similar case, there will likely not be an "expectation of privacy" regarding information given to a third-party such as an internet service provider. If there is no "expectation of privacy", Americans' personal internet activity which is sent from the wireless routers in their private homes to their laptops, cell phones, tablets, and other connected devices, will not be protected from warrantless government surveillance and thus, can be used as evidence to arrest, charge, and convict them.