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> If we get the courts to strike down things like metadata collection in 4th amendment grounds, it will only be because the courts ignore what the Constitution

> If we get the courts to strike down things like metadata collection in 4th amendment grounds, it will only be because the courts ignore what the Constitution says and imposes one group’s “values” onto the public. I have to sincerely disagree w/ you here. To me, "papers, and effects" effectively covers both data at rest and data in transit. To have the government meddle with your property is a "search". Colonial-era founding fathers would not have thought stopping a messenger on horseback and searching his belongings would fly, and there is no material difference to modern-day communications. From the article, Kavanaugh writes: > The Government’s collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment, at least under the Supreme Court's decision in Smith v. Maryland, 442 U.S. 735 (1979). In Smith v. Maryland, the telecommunications provider was complicit in installation of a pen register; from Smith v. Maryland, > The telephone company, at police request, installed at its central offices a pen register to record the numbers dialed from the telephone at petitioner's home. But to apply a ruling from a case where one party is okay w/ the police monitoring a communication (the "third-party doctrine") and applying that to a case where no party is okay with the communication (NSA's spying on Americans' communications, such as through hacking communications lines of companies such as Google) is to misapply the precedent where it didn't belong. (Particularly in a request for an en banc hearing.)

rayiner 8y ago
The case Kavanaugh was writing about did not involve NSA hacking. It involved telephone companies who cooperated with the NSA to turn over metadata.
- deathanatos 8y ago
  > It involved telephone companies Facebook, Google, Apple, Microsoft, Yahoo, and other tech companies were also named as defendants in the case; calling them "telephone companies" is a stretch. > who cooperated You're perhaps right that we need to demonstrate that the companies did not cooperate. The judge's ruling in that case includes that the companies were under a FISA warrant, thus, not willingly. (The companies own public statements also demonstrate this, but those are not under oath.) A warrant of the size alleged in the case would be unconstitutional, unless you believe searching millions of American's communications can someone be considered "reasonable", but it should at least be challengable in a court of law. But further I worry this will be used for other (non-PRISM) programs, that did not involve warrants or cooperation, and were blatantly unconstitutional. If I have the timing of events here right, the Klayman case was a few months too soon; shortly after its filing, information about MUSCULAR (an NSA program capturing internal datacenter traffic in several tech companies, "the exploitation relied on the fact that (at the time at least) data was transmitted unencrypted inside Google's private cloud"[1]). [1]: https://en.wikipedia.org/wiki/MUSCULAR_(surveillance_program) https://en.wikipedia.org/wiki/MUSCULAR_(surveillance_program...

rayiner 8y ago

The case Kavanaugh was writing about did not involve NSA hacking. It involved telephone companies who cooperated with the NSA to turn over metadata.

deathanatos 8y ago
> It involved telephone companies Facebook, Google, Apple, Microsoft, Yahoo, and other tech companies were also named as defendants in the case; calling them "telephone companies" is a stretch. > who cooperated You're perhaps right that we need to demonstrate that the companies did not cooperate. The judge's ruling in that case includes that the companies were under a FISA warrant, thus, not willingly. (The companies own public statements also demonstrate this, but those are not under oath.) A warrant of the size alleged in the case would be unconstitutional, unless you believe searching millions of American's communications can someone be considered "reasonable", but it should at least be challengable in a court of law. But further I worry this will be used for other (non-PRISM) programs, that did not involve warrants or cooperation, and were blatantly unconstitutional. If I have the timing of events here right, the Klayman case was a few months too soon; shortly after its filing, information about MUSCULAR (an NSA program capturing internal datacenter traffic in several tech companies, "the exploitation relied on the fact that (at the time at least) data was transmitted unencrypted inside Google's private cloud"[1]). [1]: https://en.wikipedia.org/wiki/MUSCULAR_(surveillance_program) https://en.wikipedia.org/wiki/MUSCULAR_(surveillance_program...