4 ms·

It's interesting how textualism/originalism vs the constitution as a "living document" plays out. Of course a conservative interpretation of the constitution mi

by rconti 8y ago

It's interesting how textualism/originalism vs the constitution as a "living document" plays out. Of course a conservative interpretation of the constitution might say "the right to bear arms includes rocket launchers" where a liberal one might say "the founders could not have imagined such a weapon". In the same way, one could say "if you don't want to be tracked, don't carry a tracking device on you at all times", where a more liberal interpretation might be "the framers could not have imagined such an ubiquitous and useful device, and it's not reasonable to have to sacrifice modern convenience to maintain the privacy we thought we were guaranteed". And depending on the issue at stake, a more liberal or more conservative view might give you greater rights.

drawnwren 8y ago
I don't think that applies here. I'm specifically not saying that producing data makes it public. Rather I'm saying allowing a third party to resell your data with impunity necessarily obviates your ability to control the dissemination. If you've given control of your data to a third party, you have no control. Full stop.
- Reelin 8y ago
  > If you've given control of your data to a third party, you have no control. Full stop. Given the current state of affairs, doesn't that effectively amount to not carrying a cell phone if you don't want to be tracked? It's not reasonable to assume that I opted in to sharing my data given that no realistic alternative is available to me. I do see your point though - if third party exchanges dealing in such data are legal, then why can't the government use it? It does seem inconsistent.
  - drawnwren 8y ago
    I do agree that 'don't interact with the modern world' seems like a ridiculous solution. Personally, I think GDPR was a reasonable first step down the path of regulation. I would personally like to see a regulation in the US that forced companies to offer data reselling as an add-on to a base package. As a programmer in 2019, I think it's a bit hypocritical of me to opt-in to the industry that is responsible for the situation we are in while saying 'regulation is the solution here'. But it's important to note that we've moved from a legal to a moral question. Legally, I believe the government is currently in the right. Morally, the situation sucks and we should change it.
    - Reelin 8y ago
      > As a programmer in 2019, I think it's a bit hypocritical of me to opt-in to the industry that is responsible for the situation we are in while saying 'regulation is the solution here'. Ehh, it's not as though changing your profession would have any sort of meaningful influence on something as large and nebulous as data harvesting, aggregation, sale, and similar. Where would you even draw the line? I suspect you would have trouble finding a reasonably sized company to work for that doesn't engage with adtech or use some form of analytics in some way. Regulation is the only solution I can see here.
    - cyphar 8y ago
      > As a programmer in 2019, I think it's a bit hypocritical of me to opt-in to the industry that is responsible for the situation we are in while saying 'regulation is the solution here'. Unless you are responsible for the current situation then you aren't being hypocritical. I'm a programmer and only develop free software. I don't at all feel hypocritical to day that tech companies should be far more strictly regulated when it comes to user privacy and (god forbid!) ethics.
- notbob 8y ago
  If that were true, then wiretaps would be A-OK as long as 1) the phone company willingly plays along; and 2) the tap never physically intrudes upon the subject's property. SCOTUS ruled explicitly on this question in Katz vs. US -- wiretapping is unconstitutional, regardless of physical intrusion. Just because you route your voice through a switch owned and controlled by a third part does not mean you give up your expectation of privacy.
  - drawnwren 8y ago
    In that case, you haven't entered into an agreement whereby advertisers may know the contents of your phone conversations in order to better target you with ads. If you had, I imagine SCOTUS would rule differently. It seems to me that this debate is merely about price. If the police were buying your location data off of a service that offered it, how would they be any different than advertisers?
    - notbob 8y ago
      > If the police were buying That's not what is happening here. The police are not purchasing access like an advertiser would; they are receiving special access for the purpose of tracking suspects. > If you had, I imagine SCOTUS would rule differently. The SCOTUS of the 1960s was very clear -- routing your communication through a corporate party does not, in any way, negate your expectation of privacy from your own government! SCOTUS has changed drastically since the 1960s, and I will be unsurprised if SCOTUS rolls back every single 'privacy' case that it encounters. But that has nothing to do with the merits of these cases; it's a way of salting the earth so that Roe v. Wade can be overturned while appearing less overtly political.
      - drawnwren 8y ago
        > That's not what is happening here. The police are not purchasing access like an advertiser would; they are receiving special access for the purpose of tracking suspects. Yes, but my point was that we're only arguing about how much someone should have to spend to gain access. > The SCOTUS of the 1960s was very clear -- routing your communication through a corporate party does not, But my point, _again_, is that they were _not_ clear that you have some expectation of privacy after _selling your personal data on an exchange_.
- User23 8y ago
  Yeah, posting your private personal information on a global communications network is a chump tier move. And if you don't realize that's what you're doing then you're even more of a chump.
odessacubbage 8y ago
isn't whether the founders could or could not have envisioned such a weapon somewhat of a moot point? the right to bear arms wasn't established simply because guns are a nice thing to have but as a means of ensuring that the government could be held in check by we the people. that doesn't work if the people are limited to flintlocks and the government has literally anything they can develop with practically unlimited scope. i don't really like guns at all, i find them loud and boring really but it's strange to frequently see people who argue that the spirit of the constitution must be interpreted further than the exact language only do so in a one sided manner that just so happens to align with their preexisting beliefs.
- User23 8y ago
  The founders didn't envision the Internet either, should that mean that the first amendment doesn't cover it?

by rconti 8y ago

drawnwren 8y ago

I don't think that applies here. I'm specifically not saying that producing data makes it public. Rather I'm saying allowing a third party to resell your data with impunity necessarily obviates your ability to control the dissemination. If you've given control of your data to a third party, you have no control. Full stop.

Reelin 8y ago
> If you've given control of your data to a third party, you have no control. Full stop. Given the current state of affairs, doesn't that effectively amount to not carrying a cell phone if you don't want to be tracked? It's not reasonable to assume that I opted in to sharing my data given that no realistic alternative is available to me. I do see your point though - if third party exchanges dealing in such data are legal, then why can't the government use it? It does seem inconsistent.
- drawnwren 8y ago
  I do agree that 'don't interact with the modern world' seems like a ridiculous solution. Personally, I think GDPR was a reasonable first step down the path of regulation. I would personally like to see a regulation in the US that forced companies to offer data reselling as an add-on to a base package. As a programmer in 2019, I think it's a bit hypocritical of me to opt-in to the industry that is responsible for the situation we are in while saying 'regulation is the solution here'. But it's important to note that we've moved from a legal to a moral question. Legally, I believe the government is currently in the right. Morally, the situation sucks and we should change it.
  - Reelin 8y ago
    > As a programmer in 2019, I think it's a bit hypocritical of me to opt-in to the industry that is responsible for the situation we are in while saying 'regulation is the solution here'. Ehh, it's not as though changing your profession would have any sort of meaningful influence on something as large and nebulous as data harvesting, aggregation, sale, and similar. Where would you even draw the line? I suspect you would have trouble finding a reasonably sized company to work for that doesn't engage with adtech or use some form of analytics in some way. Regulation is the only solution I can see here.
  - cyphar 8y ago
    > As a programmer in 2019, I think it's a bit hypocritical of me to opt-in to the industry that is responsible for the situation we are in while saying 'regulation is the solution here'. Unless you are responsible for the current situation then you aren't being hypocritical. I'm a programmer and only develop free software. I don't at all feel hypocritical to day that tech companies should be far more strictly regulated when it comes to user privacy and (god forbid!) ethics.
notbob 8y ago
If that were true, then wiretaps would be A-OK as long as 1) the phone company willingly plays along; and 2) the tap never physically intrudes upon the subject's property. SCOTUS ruled explicitly on this question in Katz vs. US -- wiretapping is unconstitutional, regardless of physical intrusion. Just because you route your voice through a switch owned and controlled by a third part does not mean you give up your expectation of privacy.
- drawnwren 8y ago
  In that case, you haven't entered into an agreement whereby advertisers may know the contents of your phone conversations in order to better target you with ads. If you had, I imagine SCOTUS would rule differently. It seems to me that this debate is merely about price. If the police were buying your location data off of a service that offered it, how would they be any different than advertisers?
  - notbob 8y ago
    > If the police were buying That's not what is happening here. The police are not purchasing access like an advertiser would; they are receiving special access for the purpose of tracking suspects. > If you had, I imagine SCOTUS would rule differently. The SCOTUS of the 1960s was very clear -- routing your communication through a corporate party does not, in any way, negate your expectation of privacy from your own government! SCOTUS has changed drastically since the 1960s, and I will be unsurprised if SCOTUS rolls back every single 'privacy' case that it encounters. But that has nothing to do with the merits of these cases; it's a way of salting the earth so that Roe v. Wade can be overturned while appearing less overtly political.
    - drawnwren 8y ago
      > That's not what is happening here. The police are not purchasing access like an advertiser would; they are receiving special access for the purpose of tracking suspects. Yes, but my point was that we're only arguing about how much someone should have to spend to gain access. > The SCOTUS of the 1960s was very clear -- routing your communication through a corporate party does not, But my point, _again_, is that they were _not_ clear that you have some expectation of privacy after _selling your personal data on an exchange_.
User23 8y ago
Yeah, posting your private personal information on a global communications network is a chump tier move. And if you don't realize that's what you're doing then you're even more of a chump.

odessacubbage 8y ago

isn't whether the founders could or could not have envisioned such a weapon somewhat of a moot point? the right to bear arms wasn't established simply because guns are a nice thing to have but as a means of ensuring that the government could be held in check by we the people. that doesn't work if the people are limited to flintlocks and the government has literally anything they can develop with practically unlimited scope. i don't really like guns at all, i find them loud and boring really but it's strange to frequently see people who argue that the spirit of the constitution must be interpreted further than the exact language only do so in a one sided manner that just so happens to align with their preexisting beliefs.

User23 8y ago
The founders didn't envision the Internet either, should that mean that the first amendment doesn't cover it?