The ruling also gave a nod to the way in which fast-moving technological advances have challenged age-old laws on privacy. Consumers today may want privacy over location records, the court acknowledged: “But the recourse for these desires is in the market or the political process: in demanding that service providers do away with such records (or anonymize them) or in lobbying elected representatives to enact statutory protections.”
Court's logic: we must be free and democratic; accordingly anything the government does is perfectly free and democratic
Normal logic: if we approve a law as a voting public under conditions of free and equal franchise, then we can call ourselves free and democratic
Furthermore - I don't know why people keep insisting that we "choose" boilerplate contracts. With the ubiquitous nature of cell phones (including, for many, use that is required for work), opting out isn't really an option. This is the same logic as "who cares about policing sanitary conditions in bread factories. People can choose not to eat bread after all." Well yeah, I suppose we might. But what kind of "free" world is that? It's not a real choice that's offered.
We may never experience a universe where we can accurately balance the repercussions, externalities, and latent costs of all the choices that we face as individuals. Indeed, it may prove impossible, as we all weigh costs and repercussions differently to some extent. And if we can't include these costs when measuring the availability of certain choices, then it's difficult to talk confidently about some unfettered liberty of contract.
Yet to completely ignore those costs while still insisting on the existence of complete freedom to choose is nothing short of infantile.
And so we come back to "we didn't vote a new law to outlaw this stuff." Other than this being a classic bate-and-switch - leveraging our collective guilt about not going to the polls as much as we think we should - it also
(1) ignores what some call the costs and inefficiencies associated with "collective action;" perhaps we don't like the law, but not sufficiently to overcome the (often gigantic) hurdle of political action, especially in this day and age of political corruption, special interest politics, and corporate money. That we have not yet acted to undo the law is no kind of democratic consent; democracy shouldn't be so costly to us so as to undermine democratic action. And that's before we get to the fact that the government's activities aren't exactly sufficiently transparent to allow us to react.
(2) ignores the fact that approval/disapproval of something after the fact is democracy by acclamation, not real democracy. This is especially disturbing when it comes to something really important like 4th amendment rights, as opposed to, oh, say, the specific executive implementation of welfare benefits that, generally speaking, were already democratically approved in spirit, if not in detail.
In fact, I don't really see the difference between this and Hugo Chavez undertaking nationalization and then announcing later it's "the people's will."
