3

Source: R. v. Tessling, 2004, Supreme Court of Canada, by Justice Ian Binnie

1 On this point, as well, we part company with the U.S. Supreme Court majority in Kyllo insofar as Scalia J. declined to distinguish among types of information relating to the home. He declares that “[i]n the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes” (p. 37). This view seems to be predicated on the “originalism” philosophy of Scalia J. for he writes (at pp. 34-35):

We think that obtaining by sense-enhancing technology any information regarding the interior of the home [1.] that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” Silverman, 365 U.S., at 512, constitutes a search _ at least where (as here) the technology in question is not in general public use.

Sequences of negative words still smother my reading comprehension. So please explain and show all steps and thought processes? Do all negative words in the bolded phrase lie within each other's scope? Then, am I right to pair and eliminate instantly not and without?
Finally, can I just replace them with WITH ?

2. obtaining ... information ... that could not otherwise have been obtained WITH without ... intrusion

Now otherwise seems redundant? What are the similarities and differences between 2 and 3?

3. obtaining ... information ... that could otherwise have been obtained WITH ... intrusion

  • Mr le Pressentiment, J'ai fait une réponse! – Araucaria Feb 7 '15 at 17:08
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    @Araucaria +1. Je vous remercie comme toujours ! Veuillez me permettre de la lire et relire avant de choisir une des réponses ! – Greek - Area 51 Proposal Feb 7 '15 at 23:54
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    @Araucaria- I think he means the one that is "highlighted" in grey. – Jim Feb 22 '15 at 2:02
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    @Araucaria Thank you very much again. Sorry for any confusion; user 'Jim' above is right. I had meant 'grey' as a verb (out of laziness), so 'highlighted in grey'. – Greek - Area 51 Proposal Feb 22 '15 at 2:12
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    @Araucaria You're most welcome. It's I who must thank you again. My minor edits pale by comparison with your enlightening contributions. – Greek - Area 51 Proposal Feb 22 '15 at 2:27
2

We think that obtaining by sense-enhancing technology any information regarding the interior of the home [1.] that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” Silverman, 365 U.S., at 512, constitutes a search _ at least where (as here) the technology in question is not in general public use.

Simplifying the sentence

Let's make this sentence a bit easier to understand. We don't really need the phrase "We think that" here. We can also delete the reference: "Silverman, 365 U.S., at 512,". That phrase at the end, "at least where ... use", just defines some aspects of the sentence. We can delete that too. This leaves us with:

  • Obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search.

To make the sentence clear it might help to identify the subject, verb and complement.

  • Subject: Obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area
  • Verb: constitutes
  • Complement: a search.

Simplifying the Subject

We can make the subject a bit easier to understand. sense-enhancing technology is a bit long. Let's call it SET.

Information regarding the interior of the home, just means information about the inside of people's houses. Let's replace that long phrase with the short phrase home information.

The constitutionally protected area means a house. People's houses are protected by the law. They are private and the police need special procedures to go into people's private homes. Physical intrusion means physically going into somewhere. Let's replace "physical intrusion into a constitutionally protected area" with "going into people's houses".

This gives us:

  • [Obtaining, by SET, home information - that could not otherwise have been obtained without going into people's houses] - constitutes a search.

The subject of this sentence is a clause. We can break it down like this:

  • Verb: Obtaining
  • Object: home information that could not otherwise have been obtained without going into people's houses
  • Adjunct: by sense-enhancing-technology

The Object is a long noun phrase. The head of the phrase is the noun information.
There is a relative clause modifying our understanding of the information:

  • that could not otherwise have been obtained without going into people's houses

The greyed relative clause

This greyed relative clause is difficult to understand. It has a double negative in it. It also has the word otherwise, which introduces a conditional idea.

The double negative is cause by using the words not and without in the same phrase. If we use not without in a sentence, it has the same meaning as only with or only by. Consider the following sentence:

  • I can't open it without a key

This has the same meaning as :

  • I can only open it with a key.

Similarly the following pairs of sentences mean the same thing:

  • I don't drink coffee without milk = I only drink coffee with milk.
  • You can't make an omelet without breaking eggs = You can only make an omelet by breaking eggs.

So the greyed relative clause here means:

  • that could only otherwise have been obtained by going into people's homes.

The word otherwise means "without X". There is no grammatical rule to tell us what X is in a sentence. We need to understand from the context. In this sentence X means sense-enhancing technology. The word otherwise can go after the auxiliary verb. We need to put the preposition phrase without sense-enhancing technology at the beginning or end of the clause. So the relative clause means:

  • that, without sense-enhancing technology, could only have been obtained by going into people's homes

The sentence

The whole sentence therefore means:

  • Obtaining, by SET, home information - which without SET could only have been obtained by going into people's homes - constitutes a search.

That bit at the front is a bit clunky. The phrase Obtaining by SET just means Using SET to get. Let's see how that reads:

Using SET to get home information - which without SET could only have been obtained by going into people's homes - constitutes a search.

This should be a bit more straightforward to understand. The OP asks whether these three negations not, otherwise and without cancel each other out. The answer is almost, but not quite. Not not usually cancels itself out in standard English.
So I do not not drink coffee just means I do drink coffee.
However, not without still gives an extra meaning. It still gives the meaning only with.
So I don't drink coffee without milk doesn't just mean that I drink coffee with milk. It means I only drink coffee with milk. The only meaning in the original example is crucial. The authors' point is that when the police use SET to get private information about peoples homes, this is a breach because this information can usually only be obtained by searching people's houses. Now, if there were other ways of getting this information apart from going into people's houses, then using SET in this way would not constitute a search. So the fact that a physical search is the only other method is crucial here. The otherwise is not canceled out either. It is an adjunct and does not change the polarity of the main sentence.

Hope this is helpful!

4

To answer the title, the bolded phrase could be recast as
[4.] "that could only have otherwise been obtained with".
The meaning being conveyed is that the information in question could only be obtained in one of two ways: 1) "physical intrusion" (PI) and 2) "sense-enhancing technology" (SET). The purpose, presumably, is to make the case that the same constitutional protections that apply to 1) should also be applied to 2), because they serve the same practical function.

Neither of your reparsings are exactly correct. #2 is not an incorrect statement (sorry for the double negative), but is not equivalent to the original statement because it does not eliminate the possibility of there being other methods of obtaining the information in question. That is to say, the information could be gained by PI or SET, but also by other means.

Likewise for #3, which has the same meaning as #2. Between #2 and #3, the "otherwise" is redundant: it is implied by the fact that SET is not the same as PI.

However, "otherwise" is necessary in the original statement (and my reparsing 4 above). otherwise means 'without SET'. Without otherwise, the statement would be technically nonsensical. It makes no sense to say (roughly):
"obtaining information via SET that could not have been obtained without PI".
If the information could not be obtained without PI, then there would be no other way to obtain it.
But clearly SET is another way.

  • @StoneyB +1. Agreed. Would you like to undelete your answer please, which I find helpful and which your clear dissection of the three cases recommends? By '3 cases', i mean 'technology' as the first and 'otherwise' as the 2nd and 3rd? – Greek - Area 51 Proposal Feb 22 '15 at 1:38
  • @StoneyB Thank you for revitalising your answer which I upvoted – Greek - Area 51 Proposal Feb 22 '15 at 2:16
2

No, Justice Scalia is employing each of these negatives properly to express a complex idea. He speaks of two methods of obtaining information about the interior of the home (a constitutionally protected area):

  1. by sense-enhancing technology
  2. by some other method ('otherwise')

Category 2 is divided into two subcategories

  • 2a. Methods which require physical intrusion into a constitutionally protected area
  • 2b. Methods which do not require such physical intrusion.

Obtaining information by M1 constitutes a search if the information cannot be obtained by M2 unless you employ ( = 'without employing') M2a — which is constitutionally prohibited.

1

We think that obtaining by sense-enhancing technology any information regarding the interior of the home [1.] that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” Silverman, 365 U.S., at 512, constitutes a search _ at least where (as here) the technology in question is not in general public use.

Let's reverse the order leaving out "otherwise":

In situations where the technology in question is not in general public use, to obtain any information regarding the interior of the home using sense-enhancing technology constitutes a "search" if that information could not have been obtained without physical intrusion.

Otherwise is the wrong word. If "the only other way to obtain the information were via a physical intrusion". Does "otherwise" mean "the only other way"? Or "barring use of SET"?

The sentence is about those conditions that cause the obtaining of information via technological means to be tantamount to a "search".

Presumably if all of our neighbors were spying on us with sophisticated spy toys, we can no longer consider the privacy of our homes constitutionally protected, since there's no longer the reasonable expectation of privacy. Specious argument, IMO. If the Supreme Court is slow to act to prohibit such neighborly spying, our constitutional protections evaporate?

P.S. For "neighborly" one might substitute "corporate". Is the view of a home's interior obtained by one of Amazon's delivery drones an invasion of privacy? Could it be used as evidence?

  • Regarding otherwise: I think it is necessary. Your bolded sentence actually doesn't work--if SET is not a PI (if it was, the whole issue would be moot), then definitionally, SET cannot be used to obtain information that could not have been obtained without PI. "Otherwise" provides an outlet for that. I suppose it could be replaced with "but for the existence of SET", but I'm not sure that's a particular improvement. I think the operative definition of otherwise here is "in other circumstances", those other circumstances being the non-existence of SET. – Matthew W Feb 7 '15 at 1:26
  • @Matthew W: But what is needed is not a word that means "in other circumstances" but a word or phrase that means "in all other circumstances". Scalia's logic goes like this: If, apart from the use of S.E.T., there is no way to obtain information about the interior of the home except by physical intrusion, then the use of S.E.T. would constitute a "search"—unless the technology is already in general public use. – Tᴚoɯɐuo Feb 7 '15 at 11:24
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    We may be at cross-purposes. I'm saying that in Scalia's original sentence the double negative makes otherwise work: "not otherwise obtained without" meaning "in circumstances where SET does not exist [the information] cannot be obtained without PI". "Cannot be obtained without" being identical to "can only be obtained with". In the positive construction, you're right, otherwise isn't strong enough, which is why I added "only", "only otherwise" meaning, "in all other circumstances". In your sentence, you could replace "apart...SET" with "otherwise", if SET were already discussed. – Matthew W Feb 7 '15 at 15:48
  • I see your point about the effect the negatives have on otherwise. – Tᴚoɯɐuo Feb 7 '15 at 15:57

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