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I'm intrigued by the idea/necessity of some "non-omniscience" factor in weighing 4th amendment cases moving forward. The argument is always that they're only t

I'm intrigued by the idea/necessity of some "non-omniscience" factor in weighing 4th amendment cases moving forward. The argument is always that they're only tracking the "same views enjoyed by passersby on public roads", attempting to create a false equivalence between a camera and a human. This has always been a pet peeve of mine, because there are factors that nullify the projected equivalence: each of these 'passersby' on the public road can only be in one place at one time. They are not omniscient. Further, there is an assumed limit to the amount of data they can collect (what can one person see from that street corner) and an assumed cost to the collection of that data (and therefore: even a government is limited in the scope of collection; they can't place an agent infront of every house on every street). These were the assumptions present in the time of the writing of the amendment. These assumptions only apply to the economics of humans, not cameras, and materially changes the effect of the law in the present day. Courts will need a mechanism to articulate that a camera is not equivalent to a passerby. It's not a question of function, it's a question of scope. Much like anti-trust laws or regulations against cornering economic markets don't differentiate based on function, but the scope of the function. When it comes to privacy - the kind that the Fourth Amendment was written to protect - yes, placing agents on corners is substantially different than placing cameras on corners.

Chris2048 11y ago
Nothing a regular passerby nailed to a utility pole couldn't observe.
- HCIdivision17 11y ago
  That right there may be the most succint and acerbic summary of the issue I've ever heard.
  - s_q_b 11y ago
    With privacy, a change in quantity is a change in quality.
- jliptzin 11y ago
  With binoculars
nostromo 11y ago
A Supreme Court ruling from 2012 will give you hope. They unanimously found that the government needs a warrant to put a GPS tracker on your car. Similar to this case, the state argued that a cop didn't need a warrant to follow a car, so why was a GPS tracker any different? It just made the police work more efficient. The court disagreed. http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf
- daxelrod 11y ago
  My understanding is that the ruling hinges on the physical attachment of the GPS tracker to a person's effect (their car) being a violation of the fourth amendment. The first two pages have a concise summary. I don't see how that would apply here.
  - monocasa 11y ago
    Sotomayer, Alito, Ginsburg, Breyer and Kagan concurred with the original decision, but wrote separate decisions bring up these exact points.
    - cvwright 11y ago
      > Sotomayer, Alito, Ginsburg, Breyer and Kagan One of these things is not like the others. Did Alito take the same position as the others listed here?
      - monocasa 11y ago
        Basically. Sotomayer wrote one concurring decision, Alito wrote the other, and the rest were with Alito. Alito's not all bad; this decision really brought out the anti-government side of him.
    - dragonwriter 11y ago
      > Sotomayer, Alito, Ginsburg, Breyer and Kagan concurred with the original decision, but wrote separate decisions bring up these exact points. Strictly speaking, only Sotomayor concurred in the original decision, Alito, Ginsburg, Breyer, and Kagan concurred in the judgement (that is, the result). The difference is significant in general, because the decision includes the rationale, and the Alito opinion (joined by Ginsburg, Breyer, and Kagan) disagrees with the rationale of the majority opinion. (That is, the majority held trespass to be decisive, Sotomayor agreed that it was in this case, but explicitly wrote a concurrence to argue that trespass wasn't necessary for a violation, and the other four agreed that GPS was a violation, but disagreed that trespass was an appropriate consideration.) That is, there were four justices who believed that the GPS tracker was a violation because of the trespass to the target's property, four justices who though it was a violation for other reasons, but not because it was trespass to property, and one who thought it was violation because of trespass to property as well as other reasons. Which results in the interesting situation, in that there were different (but overlapping with Sotomayor in both) 5-vote majorities both for the violation due to trespass view and the violation due to reasons-other-than-trespass view.
maxerickson 11y ago
A better solution would be some new constitutional amendments. Of course not an easy thing, but it's a lot better than hand wringing about what the courts will gin up.
droithomme 11y ago
Yes, good point. A passerby is passing by, not standing there 24 hours a day for 10 weeks staring in a particular direction. So they are not really the same thing.
- Mtinie 11y ago
  The passerby could attempt to stand there 24 hours a day for 10 weeks looking in the same direction but I expect that at some point during that time period the they would harassed by local law enforcement concerning the nature and purpose of their "loitering".
  - fapjacks 11y ago
    Bingo. It boils down to the narrative law enforcement wants to make their case, and nothing else matters to them.
  - GauntletWizard 11y ago
    I've got the rough equivalent: a couple nosy retired neighbors, who email the neighborhood mailing list every time they see a truck roll down the street they don't recognize. They don't get harassed by law enforcement, in fact, they're on great terms. The increasing omniscience of your neighbors brings society back from a relatively short period of anonymity. In a small town, a single officer off the main road knew everyone's comings and goings. This did lead to a lot of abuse, and I'm glad that we're beyond the worst of sheriff as bully. But the answer to increasing observational powers isn't going to be in forcing law enforcement to be crippled, it's going to be in better open access and transparency on what and who they are targeting.
    - Mtinie 11y ago
      I agree to a certain degree, but if I understand this particular case correctly, isn't one of the conflicts in this case the difference between general surveillance vs. targeted surveillance? It's one thing to say that "everyone" is under observation when a 360-degree camera is posted on a pole in the middle of town, but another when a single lens camera is posted on the same pole but only pointed at your bedroom window. Now, whether they are legally different is not something that I'm qualified to address, but personally I see a wide difference between the two.
Lawtonfogle 11y ago
If nothing else, someone who spent 24/7 watching a person for weeks would soon find themselves facing a restraining warrant or some similar legal tool to stop stalking.
- superuser2 11y ago
  Anti-stalking laws tend to require that the stalker be actively threatening in some way. Passive observation isn't generally enough to do it.
  - Lawtonfogle 11y ago
    Significant amounts of passive observation without some explanation (such as the paparazzi following a celebrity) would qualify. It wouldn't be criminal (initially), but it would be enough to get legal intervention to be made to stop, especially if it had been documented to have been occurring for weeks.
fnordfnordfnord 11y ago
Exactly, if the man had stepped out on his porch, surveyed the landscape, and noticing no person present then decided to urinate on his lawn (in view of the camera), (as is a great rural American tradition), is the man now potentially on the hook for indecent exposure?
- fapjacks 11y ago
  To be blunt, I think phrasing things as questions is not helpful, because the government entities that want to violate all of our rights will just answer "yes" or whatever suits their current spasm of sociopathy and control. We need to start phrasing these things in a manner that says "NO" and doesn't leave it open for interpretation. No, a person should not be on the hook for indecent exposure because individuals should be able to decide when they have an expectation of privacy. No asshole in the government should be able to say "everybody doing thing X (or using thing Y) does not have an expectation of privacy" because that's what they say about everything. Nothing makes me rage harder than these criminals in the government saying things like that about me. Like this stuff about Tor users not having an expectation of privacy. If those people don't have an expectation of privacy, nobody does. So let's stop phrasing these kinds of things as questions and be more forceful about how we really feel.
superuser2 11y ago
On the side of photographers' rights: You're talking about placing a EULA on receiving visible light. That the photons have interacted with your person doesn't make them yours. Trying to tell people what they can and can't do with incoming visible light in a public place is an egregious breach of their freedom. You simply do not have the authority (morally or practically) to control what happens to other people's observations about you in public spaces. It's not your data, it's theirs. Reaching into people's sensory systems and making rules about what can't get written down or shared is a disgustingly Orwellian violation of their autonomy of thought and freedom of speech. You have a right to privacy in your enclosed property, over your secure communication channels, etc. When you can be seen from a public place, you simply don't. On the belief that pervasive surveillance is a societal problem, it might be reasonable to restrict the state from using its property/infrastructure for surveillance camera positions, or to prevent the police from using such a system to go trawling for targets to investigate. But you absolutely cannot bar a private individual from having cameras on his person/property/car or place restrictions on how he shares that data.

Chris2048 11y ago

Nothing a regular passerby nailed to a utility pole couldn't observe.

HCIdivision17 11y ago
That right there may be the most succint and acerbic summary of the issue I've ever heard.
- s_q_b 11y ago
  With privacy, a change in quantity is a change in quality.
jliptzin 11y ago
With binoculars

nostromo 11y ago

A Supreme Court ruling from 2012 will give you hope. They unanimously found that the government needs a warrant to put a GPS tracker on your car. Similar to this case, the state argued that a cop didn't need a warrant to follow a car, so why was a GPS tracker any different? It just made the police work more efficient. The court disagreed. http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf

daxelrod 11y ago
My understanding is that the ruling hinges on the physical attachment of the GPS tracker to a person's effect (their car) being a violation of the fourth amendment. The first two pages have a concise summary. I don't see how that would apply here.
- monocasa 11y ago
  Sotomayer, Alito, Ginsburg, Breyer and Kagan concurred with the original decision, but wrote separate decisions bring up these exact points.
  - cvwright 11y ago
    > Sotomayer, Alito, Ginsburg, Breyer and Kagan One of these things is not like the others. Did Alito take the same position as the others listed here?
    - monocasa 11y ago
      Basically. Sotomayer wrote one concurring decision, Alito wrote the other, and the rest were with Alito. Alito's not all bad; this decision really brought out the anti-government side of him.
  - dragonwriter 11y ago
    > Sotomayer, Alito, Ginsburg, Breyer and Kagan concurred with the original decision, but wrote separate decisions bring up these exact points. Strictly speaking, only Sotomayor concurred in the original decision, Alito, Ginsburg, Breyer, and Kagan concurred in the judgement (that is, the result). The difference is significant in general, because the decision includes the rationale, and the Alito opinion (joined by Ginsburg, Breyer, and Kagan) disagrees with the rationale of the majority opinion. (That is, the majority held trespass to be decisive, Sotomayor agreed that it was in this case, but explicitly wrote a concurrence to argue that trespass wasn't necessary for a violation, and the other four agreed that GPS was a violation, but disagreed that trespass was an appropriate consideration.) That is, there were four justices who believed that the GPS tracker was a violation because of the trespass to the target's property, four justices who though it was a violation for other reasons, but not because it was trespass to property, and one who thought it was violation because of trespass to property as well as other reasons. Which results in the interesting situation, in that there were different (but overlapping with Sotomayor in both) 5-vote majorities both for the violation due to trespass view and the violation due to reasons-other-than-trespass view.

maxerickson 11y ago

A better solution would be some new constitutional amendments. Of course not an easy thing, but it's a lot better than hand wringing about what the courts will gin up.

droithomme 11y ago

Yes, good point. A passerby is passing by, not standing there 24 hours a day for 10 weeks staring in a particular direction. So they are not really the same thing.

Mtinie 11y ago
The passerby could attempt to stand there 24 hours a day for 10 weeks looking in the same direction but I expect that at some point during that time period the they would harassed by local law enforcement concerning the nature and purpose of their "loitering".
- fapjacks 11y ago
  Bingo. It boils down to the narrative law enforcement wants to make their case, and nothing else matters to them.
- GauntletWizard 11y ago
  I've got the rough equivalent: a couple nosy retired neighbors, who email the neighborhood mailing list every time they see a truck roll down the street they don't recognize. They don't get harassed by law enforcement, in fact, they're on great terms. The increasing omniscience of your neighbors brings society back from a relatively short period of anonymity. In a small town, a single officer off the main road knew everyone's comings and goings. This did lead to a lot of abuse, and I'm glad that we're beyond the worst of sheriff as bully. But the answer to increasing observational powers isn't going to be in forcing law enforcement to be crippled, it's going to be in better open access and transparency on what and who they are targeting.
  - Mtinie 11y ago
    I agree to a certain degree, but if I understand this particular case correctly, isn't one of the conflicts in this case the difference between general surveillance vs. targeted surveillance? It's one thing to say that "everyone" is under observation when a 360-degree camera is posted on a pole in the middle of town, but another when a single lens camera is posted on the same pole but only pointed at your bedroom window. Now, whether they are legally different is not something that I'm qualified to address, but personally I see a wide difference between the two.

Lawtonfogle 11y ago

If nothing else, someone who spent 24/7 watching a person for weeks would soon find themselves facing a restraining warrant or some similar legal tool to stop stalking.

superuser2 11y ago
Anti-stalking laws tend to require that the stalker be actively threatening in some way. Passive observation isn't generally enough to do it.
- Lawtonfogle 11y ago
  Significant amounts of passive observation without some explanation (such as the paparazzi following a celebrity) would qualify. It wouldn't be criminal (initially), but it would be enough to get legal intervention to be made to stop, especially if it had been documented to have been occurring for weeks.

fnordfnordfnord 11y ago

Exactly, if the man had stepped out on his porch, surveyed the landscape, and noticing no person present then decided to urinate on his lawn (in view of the camera), (as is a great rural American tradition), is the man now potentially on the hook for indecent exposure?

fapjacks 11y ago
To be blunt, I think phrasing things as questions is not helpful, because the government entities that want to violate all of our rights will just answer "yes" or whatever suits their current spasm of sociopathy and control. We need to start phrasing these things in a manner that says "NO" and doesn't leave it open for interpretation. No, a person should not be on the hook for indecent exposure because individuals should be able to decide when they have an expectation of privacy. No asshole in the government should be able to say "everybody doing thing X (or using thing Y) does not have an expectation of privacy" because that's what they say about everything. Nothing makes me rage harder than these criminals in the government saying things like that about me. Like this stuff about Tor users not having an expectation of privacy. If those people don't have an expectation of privacy, nobody does. So let's stop phrasing these kinds of things as questions and be more forceful about how we really feel.

superuser2 11y ago

On the side of photographers' rights: You're talking about placing a EULA on receiving visible light. That the photons have interacted with your person doesn't make them yours. Trying to tell people what they can and can't do with incoming visible light in a public place is an egregious breach of their freedom. You simply do not have the authority (morally or practically) to control what happens to other people's observations about you in public spaces. It's not your data, it's theirs. Reaching into people's sensory systems and making rules about what can't get written down or shared is a disgustingly Orwellian violation of their autonomy of thought and freedom of speech. You have a right to privacy in your enclosed property, over your secure communication channels, etc. When you can be seen from a public place, you simply don't. On the belief that pervasive surveillance is a societal problem, it might be reasonable to restrict the state from using its property/infrastructure for surveillance camera positions, or to prevent the police from using such a system to go trawling for targets to investigate. But you absolutely cannot bar a private individual from having cameras on his person/property/car or place restrictions on how he shares that data.