Can you justify your claim that a bulk collection of phone records "clearly" violates the Constitution? I don't think the jurisprudence is so obviously on your side there.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Okay, so tell me how call records generates by ATT that are never even in my possession are nonetheless "my" papers or effects?
The text of the amendment does not clearly support your position. Indeed, the focus is clearly on personal things (house, person), not things possessed by third parties.
By extension, then, wiretaps are just fine, by anybody. All that data, entering and leaving your house, is not in your house, so it's fair game. So is opening mail (if it's in the post office it's not under your control, right?) Your car? It's on the street, so what if we attached GPS devices.
Those microphones and cameras in public places are there for your protection. We'll never abuse that, trust us. Oh never never never.
("Hey, this guy voted Replubricatic last election, stick him on the list, too. Hey, he gave money to my opponent!")
Postal mail is historically treated as a special case because it's a government agency. Cars on the street are still your property, even when you're not in it, just as your house is still your property even when you're on vacation.
Wiretaps and documents hosted on the "cloud" are somewhere in-between. The first time the Supreme Court considered the Constitutionality of warrantless wire taps, it found that they were not protected by the 4th amendment. In the 1960's they overturned that precedent, but using reasoning that really only makes sense in an analog context where your voice directly modulates signals on a wire, and there is no intermediate storage.
Call records are further removed still. They're not a recording of your voice. They are generated by the telco, for the telco's own purposes. They are never in your possession, and you don't even know their contents. It's a huge stretch to say that they are nonetheless "your" papers.
Finally, microphones and cameras in public are clearly Constitutional. Whether they can be abused is irrelevant. The 4th amendment is not a prohibition on anything that can be abused. It's a prohibition designed to protect peoples' physical persons and their property rights from government searches.
Generally, safety deposit boxes are considered your property. However, renters in general have a property right in the space they rent, derived from landlord-tenant law. But that property right involves reciprocal rights, liabilities, and obligations. If a bank negligently causes loss of the contents of your safe deposit box, they can be held liable for that loss. When analogizing from safe deposit boxes to the cloud, as many have tried to do (including in legal cases), that whole element of reciprocal obligations is missing.
Do you have a property right in your Google Drive? Do you pay rent? Can you sue Google if they negligently lose the contents? Does Google have any obligations to give you say 30 days notice before they shut down your account? These reciprocal obligations are the difference between renting a garage to store your papers (which would fall within the 4th amendment), and simply leaving your papers in a friends' garage (which wouldn't).
While it's unclear what the line is, it's clear that it has been crossed. When you start needing lawyers to split hairs, it's time to re-examine what you've hatched and ask if it even passes a giggle test.
"Secret court" and "All this stuff we've collected? We haven't actually collected it until we look at it" and oversight by people who are clearly invested in keeping things cozy. This is all madness. How did we get here?
I might not know enough to know where to draw the line, but I know enough to know that it's gone wrong, and that erring on the side of severely restricting this kind of behavior and shedding light on what has happened is probably the best course of action.
> Indeed, the focus is clearly on personal things (house, person), not things possessed by third parties.
You need to understand the context. People did not store information about their private communications with third parties in 1776. Can you call AT&T and ask for someone else's records and get them? Why not? Things you wish to stay private do stay private unless a warrant is issued citing probable cause to violate your privacy.
> People did not store information about their private communications with third parties in 1776.
People stored all sorts of private information with third parties in 1776. They had accountants and bookkeepers and suppliers and vendors, etc.
> Can you call AT&T and ask for someone else's records and get them?
Can you call up Ernst and Young and ask for someone else's accounting records? No, but the government can.
The test isn't "things you wish to stay private." It's "reasonable expectation of privacy." It's an objective test, not a subjective one. And I find it very difficult to understand how anyone could have a "reasonable expectation" of privacy in information generated by a third party for its own use, that's exposed to god knows how many engineers and system administrators.
The test isn't "things you wish to stay private." It's "reasonable expectation of privacy." It's an objective test, not a subjective one.
But if you're going to argue that this objectively means "reasonable expectation that your privacy will be respected in this case" rather than "reasonable expectation that your privacy should be respected in this case" then you have reduced any protection to something meaningless through circular logic. By this kind of argument, anyone can violate your privacy, in any way, for any reason, and it's all OK as long as they make sure you know it's happening.
> But if you're going to argue that this objectively means "reasonable expectation that your privacy will be respected in this case" rather than "reasonable expectation that your privacy should be respected in this case" then you have reduced any protection to something meaningless through circular logic.
That's what the reasonable expectation of privacy test has always meant, so its not reducing it at all. Whether its meaningless or not, well, actual actions by government have been found to violate it, so its clearly not a null protection, even if it isn't what you'd prefer.
That's what the reasonable expectation of privacy test has always meant
Obviously I disagree with you and rayiner over how ambiguous that phrase is, but that doesn't really matter. This entire HN discussion is about a call to change the situation, in particular, the current behaviour of the US government and the laws that the US government argues permit such behaviour. Arguing that something is OK because it's what the law currently says doesn't seem to advance that debate in any useful way.
I don't disagree with the sentiment expressed by Sens. Udall, Wyden, etc. This (sub-) thread isn't about whether the surveillance program is "OK" but about this comment that spawned this thread: "Senators have to go to the press to try to stop the government from doing what clearly breaks the law."
Most of the NSA programs that have been exposed to date are not "clear" violations of the law. They are attempts to operate at the boundaries of the law as currently understood, but they seem to reflect a genuine attempt to stay within those boundaries.
Distinctions that people on Hacker News dismiss because they have a broad-based ideological opposition to surveillance, like "metadata versus data" or "U.S. persons versus foreigners" are in fact the operative markers delineating the bounds of the law.
Merely following the law doesn't turn a bad idea into a good idea, or justify a program, but it does say something about whether people are acting in good faith. What doesn't advance the debate is saying that people in the government must be acting in bad faith because they are "clearly" violating the law, when in fact you just don't understand what the law is.
Merely following the law doesn't turn a bad idea into a good idea, or justify a program, but it does say something about whether people are acting in good faith.
I think this is where we have slightly different points of view.
In the general situation we're discussing, i.e., state surveillance, the people who make the laws and the people who should be following them are the same, or at least closely related. In that context, to demonstrate good faith, I think you need to make good laws and then follow them.
There is an interesting wrinkle in the US that we don't have here in the UK because the US Constitution is theoretically out of reach of the current government. However, as usual actions speak louder than words, and as an outsider it doesn't appear that having a written constitution is a reliable safeguard any more (on many issues, not just the surveillance one). Again, the people who might be acting unconstitutionally and the people who would judge them are cut from the same cloth.
Because of these inherent conflicts of interest, I don't think that merely following the letter of the law is sufficient to demonstrate (or, equally, demonstrate the lack of) anything very interesting.
The contents of my emails are exposed to "god know how many engineers and system administrators." I still think I have a "reasonable expectation of privacy" with regards to the contents of my emails. If you hire a cleaning lady and she has access to private letters in your home, does that mean you forfeit your reasonable expectation that those letters are private?
People of course can disagree about what is "reasonable." I personally don't consider my e-mail private, not when a Google engineer has been caught stalking people through their GChats (http://gawker.com/5637234/gcreep-google-engineer-stalked-tee...), and not when the whole business model is built on reading through those e-mails to serve advertisements. I consider that quite different than my cleaning lady incidentally having access to documents in my desk drawer.
The idea that 'data' vs 'metadata' loophole has been scaled beyond belief to undermine the plain english understanding of 'reasonable' is worthy of new jurisprudence.
"Data" versus "metadata" doesn't go to the definition of "reasonable." It goes to the definition of "their" in "their persons, houses, papers, and effects..."
The basic distinction is your data versus data that's about you. If I own a store, and make a note that 001sky came in to buy a box of cookies at 2:00pm on January 23, 2005, that's my paper. It's not your paper. I can claim 4th amendment protection if the FBI breaks into my store and takes that note, but you can't. That's the legally relevant distinction between data and metadata.
> "Data" versus "metadata" doesn't go to the definition of "reasonable." It goes to the definition of "their" in "their persons, houses, papers, and effects..."
Not really, its still the persons, houses, papers, or effects of "the people" no matter which of the people it belongs to.
There's this weird idea which seems to have emerged from the use of the exclusionary rule as the main (and pretty much exclusive) remedy for violations of the Fourth Amendment that the Fourth Amendment only applies when the person about whom information is sought is the person whose person, houses, papers, or effects are being searched or seized, but there is nothing in the text of any reasonable context of the Constitutional language itself to support that, its simply a byproduct of an inadequate remedy (which, in fact, that aspect reveals to be inadequate) that seems to have worked its way back into the way that the language is read.
First, the 4th amendment isn't worded as a restriction on the actions of the government, like many other "rights" in the Constitution, but as a personal right. While an individual can't consent to say the government's exercise of an unconstitutional power, an individual can waive a personal right. For example, if the government eminent domains my property to build a highway, its not a violation of the Constitution if I waive my right to just compensation. So while the call metadata is clearly protected by the 4th amendment as to AT&T, its their personal right and they can waive it.
Second, ("th[e] weird idea... that the Fourth Amendment only applies when the person about whom information is sought is the person whose person, houses, papers, or effects are being searched or seized") doesn't stem from the exclusionary rule, but rather the subpoena power. The subpoena duces tecum (subpoena for the production of documents) predates the 4th amendment by quite a bit, appearing in England in its modern form sometime in the 1600's. While an overly broad or abusive subpoena can be a 4th amendment violation (but against the person at whom the subpoena is directed, not against the subject of the documents sought), they are presumptively reasonable.
Thes boundaries are blurred quite easliy with sufficiently advanced technology. That is the point. I can FLIR your house from a public location. Or isps and email providers could store every message (full data) just like the metadata and now 'own' a free copy. Arguably gmail has walked this line in their argument that scanning the metadata to route the message and scanning the content for meaning are equivalent interrogations of bits. But there are strong arguments about piercing of protected speech or inpinging on the veil privacy in the home, using technology to blunt force your way in are limited by jurisprudence already. That is why the surveilance by artifacts of speech and surveilance of actual speech is not such a simple issue.
There are situations in which technology changes things and the law has adapted (e.g. using an infrared camera to look into a house from a public location is a 4th amendment violation), but this is not one of those situations. At least when it comes to call metadata, technology really has nothing to do with it. Whether AT&T records it on magnetic tape or quantum bits, it's still their records, generated by their equipment, kept for their purposes, that you never have access to. These characteristics aren't an artifact of the technology, they're reflective of the fundamental nature of the information in question: it's AT&T's information about you, not your information.
At least when it comes to call metadata, technology really has nothing to do with it
I'm not sure this is logically possible. The metadata retention by the telco's is an artifact of their business process (minimize fraudulent billing liability)[1]. A similar process did not exist for mail until the government mandated and paid for it. Now, every piece of mail is photgraphed ("to collect the 'metadata' ")and the images are recorded. That notwithstanding, the entire notion of such meta-data is strictly an artifact of technology. There is no analogue in pure verbal speech, in other words.
[1] There is no need for them to retain it or to otherwise "posess" it in an-other-than-temporary-like-snapchat-way.
The fact that metadata is generated and collected may be an issue of technology, but that doesn't change the essential characteristic of whether it's your data, or data about you. E.g., in 1776, there were no video cameras in public places. But technology doesn't change the essential character observing you in a public place versus in a private place.
> That notwithstanding, the entire notion of such meta-data is strictly an artifact of technology. There is no analogue in pure verbal speech, in other words.
Sure there is! Before mail was scanned for delivery purposes, you could always have called a postal worker to testify about what he read on the outside of the envelope. Before store cameras, you could have always called a store worker to testify about when he saw 001sky enter and leave the store and what he saw 001sky buy. Before automated call tracking, you could always have called a phone operator to testify about when 001sky placed a call. Technology makes it easier to collect metadata, but it does not turn "data" into "metadata."
You make a strong case for certain points here and I don't dismiss them. But I also think several points are blurred. That is perhaps inevitable and that is the point I am making. for example
(1) That doesn't change the essential characteristic of whether it's your data, or data about you. The datacard in my FLIR camera is (a) my data; and (b) about you. Neither of these qualifications are insurmountable. The courts have not tripped over this technicality, because the <purpose> of using the FLIR instrument is not considered a reasonable use of technology, when it has the impact of making surveilance <unavoidable> per-se.
(2) The post office example. This raises two issues: (a) technology; and (b) scale. Mail by post is distinct from verbal speech and generates metadata because of the need to address an envelope. Its low technology, but this is an artifact of the technology. With respect to scale, what is 'reasonably' to collect is a function of resource expenditure. As the cost of collection decreases, the amount of data 'reasonably' collected <increases>. But that is beside the point of where my <reasonable expectation of privacy> has changed or stayed the same.
(3) Scale, generally speaking. eg: Technology makes it easier to collect metadata, but it does not turn "data" into "metadata." The express purpose of the meta-data programs is to turn <meta> data into <data>. This is sort of the fundamental question at the heart of the matter, from a constitutional perspective. The purpose of these systems is to surveil beyond the scope of what would normally be perceived as reasonable. In that regard, it is aking to using FLIR to make surveilance <unavoidable per-se>. Or at least that is an argument which should be ajudicated. Perhaps by legislation, as well, once a more coherent framework has been set forth by the courts. In otherwords, now that these 'edge cases' are being swept up into the norm.
That's not an argument. rayiner has this exactly right: it is not a slam dunk violation of the Constitution as currently understood by the folks who make it their living to understand such things, and spodek was wrong to characterize it as such.
Outrage doesn't make you right; at this point it's just making hn boring.
>That's not an argument. rayiner has this exactly right
I actually disagree...common sense is in fact an argument...in fact it is a 4th Amendment legal argument. When a Court hears whether a search and seizure was reasonable common sense arguments often prevail. For example, you have reasonable expectations of privacy if you were in an old school public phone booth, but not on your cell phone in public...you have a reasonable expectation of privacy in your trash, that is until it hits the curb then the government can seize it (without a warrant) and use it against you in trial.
As interesting as Rayiner's points are, even if he is citing case law/legal precedent it does not make him right. At the end of the day it only matters what 9 people think, and guess what more often than not those 9 people are at odds with one another, and often to the tune of 5-4 - nevertheless what the majority/plurality of those 9 opine becomes the law of the land, still that does not make any of them right either.
One of the more interesting 4th Amendment issues is that it only applies to the Government, so the Government can not simply have a private citizen seize evidence without a warrant and use it as evidence, but they can use unlawfully obtained evidence so long as they did not direct the individual who originally obtained it...think how the Government used the photos hacked by Anonymous in the Stubenville Rape case. Ironically I think this could be one of the strongest arguments is that telecoms are actually working on behalf of the Government to obtain evidence they could otherwise not get without a warrant - in fact I would go so far as to say the Government is paying telecom companies to do this on their behalf.
You'd think all these experts would have bothered to read up just a little bit on SCOTUS cases like Smith v Maryland, etc, but I guess it's just easier to grunt Freedom.
