Q for those of you with a legal mind: how could one "extend"/reinterpret the US Forth Amendment to make it apply to things like internet logs or credit card receipts? Why should doing something via a 3rd party business make the information concerning what you do less "intimate"?
...and pondering more on it: why should businesses not benefit from the same rights to privacy as individuals do?
Read the Alito and Sotomayor concurrences (well, to be specific Sotomayor concurred in full, while Alito concurred only in judgement) in Antoine Jones v. United States (GPS surveilance of a car requires a warrant) and Douglass's dissent in California Business Association v. Shultz (a case that decided there was no 4th Amendment protection for bank records). The encouraging thing is that you can't read both of these and not think that maybe the court is slowly coming around to our side (pesky issues like standing notwithstanding, heh).
I actually don't think the third party doctrine has that much to do with call detail records. The issue is not only that they are held by a third party but that, at least when this was originally litigated, they weren't really that expressive, and there is already a major question as to whether historic cell site location data (also covered by the order btw) is protected, with already circuit splits forming on the issue.
His argument is that: it would be inconvenient to follow the 4th amendment in the 21st century, because computers give people the technical power to have conversations in private that would be otherwise need to be public, so government should ignore the 4th amendment.
In short, there is no such interpretation, but government lackeys and show-off contrarians make up sophistic excuses for the governments illegal actions.
The problem is that Kerr's assessment of the impact of technology on searches and seizure is exactly backwards. Modern technology makes it far easier to intercept people's private correspondence, track their movements, and perform undetectable surveillance against them.
It's utterly absurd to suggest that technology gives us more opportunities for private conversations now than it did when audio and video couldn't be recorded and when written correspondence existed in the form of single-instance physical documents that could be sealed and examined for tampering.
So if the fourth amendment is to remain "technology-neutral", we need to be far more aggressive in its application, not less so. Encryption is, at best, a tool that helps people restore the former level of privacy that they would have expected in their correspondence.
> Q for those of you with a legal mind: how could one "extend"/reinterpret the US Forth Amendment to make it apply to things like internet logs or credit card receipts?
I don't think its worth a strained interpretation of the 4th amendment to achieve this purpose. If it is desired, it would be better to make it a statutory or common law privilege (e.g. like the kind that applies to confidential communications between clients and their lawyers).
> Why should doing something via a 3rd party business make the information concerning what you do less "intimate"?
Because information that is voluntarily exposed to third parties is almost by definition not "intimate"?
Technologists tend to be fundamentally mistaken about the nature of the information at issue in privacy debates like this. AT&T's logs of your calls are not your information. They're AT&T's information. Romantic notions of internet technology aside, this is the physical nature of things: it's AT&T's data collected by AT&T's routers and wireless base stations, sitting on AT&T's servers. It's not your private information, at least not in the technical sense.
To use an analogy: you can object to the government listening in on a private dinner party at your house. You can't object to the government asking one of your guests what was said at the dinner party. You can't assert your privacy right over information that isn't yours.
> ...and pondering more on it: why should businesses not benefit from the same rights to privacy as individuals do?
They do. They just don't care to assert that right to protect the data they have on individuals.
The content and addresses of the letters you send cease to be 'your information' the moment they enter the mail system.
Does this mean we expect, Constitutionally, for them to be penetrated by government overseers?
If the Constitutional protection were about one's diary, something one expects never to transmit to another, that would be another matter, but the clause is implicitly understood to apply to information transmission and storage between people.
The text of the 4th amendment says: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..."
Which of those are things you transmit between people? Note the use of the word "paper" (connotative of something you keep in a desk, like a diary) versus the word "letter" (connotative of something you send to someone else).
The addresses of Postal mail have never been considered "your information" protected by the 4th amendment. The contents of Postal mail are considered protected, but given that the protection does not extend to UPS/FedEx/etc, it seems to be based on the unique status of the Postal service as an organ of the government.
Comments
Q for those of you with a legal mind: how could one "extend"/reinterpret the US Forth Amendment to make it apply to things like internet logs or credit card receipts? Why should doing something via a 3rd party business make the information concerning what you do less "intimate"?
...and pondering more on it: why should businesses not benefit from the same rights to privacy as individuals do?
Read the Alito and Sotomayor concurrences (well, to be specific Sotomayor concurred in full, while Alito concurred only in judgement) in Antoine Jones v. United States (GPS surveilance of a car requires a warrant) and Douglass's dissent in California Business Association v. Shultz (a case that decided there was no 4th Amendment protection for bank records). The encouraging thing is that you can't read both of these and not think that maybe the court is slowly coming around to our side (pesky issues like standing notwithstanding, heh).
I actually don't think the third party doctrine has that much to do with call detail records. The issue is not only that they are held by a third party but that, at least when this was originally litigated, they weren't really that expressive, and there is already a major question as to whether historic cell site location data (also covered by the order btw) is protected, with already circuit splits forming on the issue.
Orin Kerr explains: http://www.volokh.com/posts/1211991760.shtml
His argument is that: it would be inconvenient to follow the 4th amendment in the 21st century, because computers give people the technical power to have conversations in private that would be otherwise need to be public, so government should ignore the 4th amendment.
In short, there is no such interpretation, but government lackeys and show-off contrarians make up sophistic excuses for the governments illegal actions.
The problem is that Kerr's assessment of the impact of technology on searches and seizure is exactly backwards. Modern technology makes it far easier to intercept people's private correspondence, track their movements, and perform undetectable surveillance against them.
It's utterly absurd to suggest that technology gives us more opportunities for private conversations now than it did when audio and video couldn't be recorded and when written correspondence existed in the form of single-instance physical documents that could be sealed and examined for tampering.
So if the fourth amendment is to remain "technology-neutral", we need to be far more aggressive in its application, not less so. Encryption is, at best, a tool that helps people restore the former level of privacy that they would have expected in their correspondence.
"Sophistry" does not mean "I don't like the result of this educated and rational analysis."
No, it means "A plausible but misleading or fallacious argument"
What's fallacious about it?
Do you think it should be illegal to use unbreakable encryption to secure documents or conversations?
> Q for those of you with a legal mind: how could one "extend"/reinterpret the US Forth Amendment to make it apply to things like internet logs or credit card receipts?
I don't think its worth a strained interpretation of the 4th amendment to achieve this purpose. If it is desired, it would be better to make it a statutory or common law privilege (e.g. like the kind that applies to confidential communications between clients and their lawyers).
> Why should doing something via a 3rd party business make the information concerning what you do less "intimate"?
Because information that is voluntarily exposed to third parties is almost by definition not "intimate"?
Technologists tend to be fundamentally mistaken about the nature of the information at issue in privacy debates like this. AT&T's logs of your calls are not your information. They're AT&T's information. Romantic notions of internet technology aside, this is the physical nature of things: it's AT&T's data collected by AT&T's routers and wireless base stations, sitting on AT&T's servers. It's not your private information, at least not in the technical sense.
To use an analogy: you can object to the government listening in on a private dinner party at your house. You can't object to the government asking one of your guests what was said at the dinner party. You can't assert your privacy right over information that isn't yours.
> ...and pondering more on it: why should businesses not benefit from the same rights to privacy as individuals do?
They do. They just don't care to assert that right to protect the data they have on individuals.
The content and addresses of the letters you send cease to be 'your information' the moment they enter the mail system.
Does this mean we expect, Constitutionally, for them to be penetrated by government overseers?
If the Constitutional protection were about one's diary, something one expects never to transmit to another, that would be another matter, but the clause is implicitly understood to apply to information transmission and storage between people.
The text of the 4th amendment says: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..."
Which of those are things you transmit between people? Note the use of the word "paper" (connotative of something you keep in a desk, like a diary) versus the word "letter" (connotative of something you send to someone else).
The addresses of Postal mail have never been considered "your information" protected by the 4th amendment. The contents of Postal mail are considered protected, but given that the protection does not extend to UPS/FedEx/etc, it seems to be based on the unique status of the Postal service as an organ of the government.
You've claimed this before, and still haven't identified the precedent which holds the government can force UPS/FedEx/etc. to turn over packages.