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Try the 4th Amendment: > The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall

Try the 4th Amendment: > 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.

bb88 7y ago
If you're an originalist (and I'm not saying that I am), data in transmit is not necessarily protected by that amendment If your data has left your house, is it really your data, or is it Google's say?
- fuzz4lyfe 7y ago
  When you send a letter it does not belong to the post office while in transit. Why are bits on a hard drive any different?
  - bb88 7y ago
    Can you point an originalist to the constitutional clause or amendment that grants such a right?
    - Rooster61 7y ago
      It probably isn't in the Constitution, but I would not be surprised if there was legal precedent for such a thing.
      - bb88 7y ago
        That's the problem with an originalist, settled law isn't necessarily settled. Previous court decisions may have been decided incorrectly.
    - homonculus1 7y ago
      No clause or amendment grants any right. Rights are explicitly innate to the individual and not granted by or limited to the constitution.
      - bb88 7y ago
        An originalist would point out that the constitution does not grant rights, but merely limits the laws and actions that government can take. Despite what the constitution says, human rights are not self evident, they must in fact be legalized.
        MereInterest 7y ago
        This hypothetical originalist would have an interesting time dealing with the ninth amendment, which explicitly states that the Bill of Rights is not a full listing of all human rights. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
  - txcwpalpha 7y ago
    Inspectors can and do inspect the contents many types of mail, though, so I'm not sure this example is a good one for those championing privacy... To elaborate: when using the US Postal Service, only domestic "First Class Mail" and "Priority Mail" (these are different and distinct from standard mail) is protected and requires a probable cause warrant to open and inspect. Other types of mail, as well as all packages shipped through private companies like UPS and FedEx, do not require warrants and can be opened and inspected whenever the post office or UPS/FedEx feel like it. There isn't an expectation of privacy for these packages, and certainly no constitutional protection of it.
    - 4ntonius8lock 7y ago
      fuzz4lyfe > When you send a letter it does not belong to the post office while in transit txcwpalpha > Inspectors can and do inspect the contents... of mail txcwpalpha > ...for packages There's a scarecrow argument if I've ever seen one. Someone says A is 1. You say A isn't 1 because AB is 2. Sneaky. There certainly is an expectation of privacy in my mail CORRESPONDENCE (which is what this whole thing is about... communication, not package sending). Why shouldn't there be for my e mail correspondence?
      - txcwpalpha 7y ago
        I did not say that A isn't 1. In fact, in my comment I specifically acknowledge that A is 1 (some types of mail are protected by the 4th amendment). Please do not try to construct a straw man. The point is that there is already a determination that not all items sent through mail services have an expectation of privacy. If we're drawing a parallel between physical mail and e-mail, this lends to the belief that such a determination could also be made for items sent through electronic media, especially items sent through electronic media that is owned by private companies (ISPs), similar to how private shipping companies do not provide 4th amendment protection. >There certainly is an expectation of privacy in my mail CORRESPONDENCE Not all mail correspondence, which is the point. If you send a letter through USPS standard mail, there is no expectation of privacy. If you send a document through UPS, there is no expectation of privacy. Also, you're getting hung up on the usage of the words "package" vs "correspondence" vs "mail" vs "letter". This is an unnecessary distinction. A letter is just a "package" that contains paper with information on it. The law doesn't see a difference. In my original comment, you should read the words package/letter/mail/correspondence interchangeably.
  - imglorp 7y ago
    They are different because of aggregation: the hundreds of signals an organization has from your activities are combined into thousands of derived signals, which you probably would not have offered the organization freely. Just for example, by combining several data points, Skynet can infer that those people are acquainted and add that fact to the corpus about you both. You would never give a retailer a full dump of everyone in your address book, but it's pretty much given they know it.
  - nickles 7y ago
    > When you send a letter it does not belong to the post office while in transit. You only have an expectation of privacy of the contents of the letter. You have no such expectation of anything on the envelope itself (e.g. sender/receiver address). The government contends that it only collects analogous metadata in transit, not the contents of the communication itself (although this is debatable).
- bryanrasmussen 7y ago
  Isn't that data one of your effects?
- garmaine 7y ago
  That wasn't the only program. They were also tapping into cell phones and laptop webcams for remote surveillance on targeted subjects, but without any constitutionally required warrant checks in place.
  - bb88 7y ago
    But was it illegal? And how would you know that such a warrant didn't actually exist in a court, particularly the FISA court? It's possible that with FISA, everything under the so called warrantless wiretap program might be legal -- you just don't have access to prove it is.
    - garmaine 7y ago
      Have you been paying attention? At the time that Snowden made his revelations, no approval was necessary for an NSA analyst to activate a webcam, for example. They literally just had to select from a menu of totally broad reasons on an internal web form documenting the access. They had a congressionally granted exemption from requiring case-by-case FISA approval. This is now all open and acknowledged, and found to be illegal.
      - bb88 7y ago
        Last I checked, the courts made the final decision on what's legal and what's not. I haven't seen the 9-0 Supreme Court decision that says that warrantless wiretapping is illegal. Maybe you can point it out to me? The point isn't that I disagree with you on what should be legal or illegal, I very much agree with you. The point is, unless something enters a court of law for ajudication, it's very much in the land of the political. And there's a lot of darkness surrounding the FISA court, much of which cannot be challenged. Is it legal? It looks like the courts say it is.
        garmaine 7y ago
        It was tested in court and found to be illegal: https://www.reuters.com/article/us-usa-security-nsa/nsas-phone-spying-program-ruled-illegal-by-appeals-court-idUSKBN0NS1IN20150507 https://www.reuters.com/article/us-usa-security-nsa/nsas-pho...
- behringer 7y ago
  Edward Snowden showed us that the NSA can and does access our webcams remotely. So they are watching you even when you don't know your data is leaving your house.
  - lern_too_spel 7y ago
    Where "our webcams" are the webcams of non-US citizens outside the US who are of interest to national security.
    - behringer 7y ago
      Wrong. That's the entire point Snowden was making. That they are engaged in illegal domestic surveillance.
      - lern_too_spel 7y ago
        The only illegal domestic surveillance program Snowden leaked was phone metadata collection. Where did any of his leaks say that the NSA would hack domestic webcams at will?
- deogeo 7y ago
  If I entrust data to Google, or my possessions to the safe of a bank, I am still injured when that trust is broken. I gave conditional access to one entity, not to everyone, and not to the government.
- Rooster61 7y ago
  Not trying to plug Andrew Yang here, but this is a big part of his platform. He's advocating for a right-to-data bill that would make any and all data collected and transmitted yours. If that goes into place, your data immediately becomes subject to these amendments. It does away with some of the legal grey area that surrounds data.
  - nostrademons 7y ago
    Curious how this handles data that is not specifically about one person, but is about the relationships between many people? Facebook's social graph, for instance: is the fact that I am friends with someone on Facebook my property, their property, or Facebook's property? Or this conversation we're having on HN: you could argue that we each own our words, but the conversation itself (including contextual replies, quoted text, arguments responded to, etc.) is its own entity that doesn't make sense when individual posts are removed, and that's why HN has a time limit for deleting your posts. What about a crowd shot that has various other people in the background? Is it property of the photographer, the clearly-visible foreground subjects, or anyone who happens to appear in it? Does that mean someone who goes around tourist attractions photobombing people has a right to claim all your family photos?
    - Rooster61 7y ago
      I haven't seen what would actually be in the bill, and I am curious as well. Hence one of the reasons I prefaced by saying I'm not plugging him :) Questions like these also partly explain why legislators are so reluctant to create law for such things.
    - 317070 7y ago
      It is the basic premise for GDPR in the EU. While convoluted (it did not end up that bad, or as bad as you'd predict), it actually delivers this idea in a workable way.
- colejohnson66 7y ago
  Re: originalists: The framers couldn’t’ve imagined the internet, and, despite that, what you say on the internet is protected by the first amendment as it is speech. Why would the fourth amendment be any different?
  - deleted 7y ago
    [deleted]
  - Rooster61 7y ago
    Because the first and fourth amendments guarantee different rights. The first guarantees that you essentially can't be arrested for speech. It says nothing about whether or not your speech can be collected and recorded. The fourth forbids the government with searching the enumerated items without cause or a warrant. Very different things.
    - colejohnson66 7y ago
      My point was that the “originalist” view of the constitution falls apart when you see that the Supreme Court has ruled that speech that the framers couldn’t even imagine is protected. They've done the same with the fourth (you can’t search a car without a warrant or probable cause even if it’s in public... to an extent). I was arguing that if you want to take an originalist view to the constitution, you’d need to give up your protection of speech online and in many other areas.
- AndrewBissell 7y ago
  Among others, Neil Gorsuch is one originalist-friendly justice who has strongly argued against this interpretation of the 4th Amendment in a modern data transmission context.
- homonculus1 7y ago
  If you're an originalist, spying on everybody is not one of the enumerated powers of the federal government.
- mattkrause 7y ago
  Is that really true? In 1789, "papers", being made of actual paper, were in transit for much longer in 1789 and there are absolutely draconian laws against destruction and obstruction of the mail. For example, 18 USC § 1702, which prohibits "with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same" also doesn't have a carve-out for governmental purposes.
  - bb88 7y ago
    Mail protection need not fall under 4th amendment protections if it's protected by laws passed by congress. Another question would be: would mail be protected without that law and just by the 4th amendment itself?
    - SamReidHughes 7y ago
      If it’s in an envelope, sure, but not if it’s on a postcard.
- michaelmrose 7y ago
  I don't think that logic even works from an originalist perspective. If the bank holds a safe deposit box on your behalf it doesn't become the banks property unless you abandon it and searching it is no less legally problematic because its lies within the banks property. One doesn't even have to reach into the realms of tech not imagined at the founders time to find useful analogies. Furthermore the idea that a document written hundreds of years ago can't be reinterpreted in the context of framers intentions and new reality is fundamentally broken. It means you have to rewrite from scratch every century.
- eternalban 7y ago
  "It’s a question fit for Benjamin Franklin. Prior to the American Revolution, Franklin had been the postmaster for the British Crown, establishing postal delivery routes throughout the colonies. In the early days, it was only official government communications that passed through the post, and it was “sealed against inspection”. Later, when the mail could be used by citizens, carriers would regularly read others’ mail along their long routes for entertainment. Franklin, eager to maintain the sanctity of the mail in a time of political upheaval, developed a set of regulations and affixed locks to postal carriers’ saddle bags. Franklin’s early regulations became part of the basis for privacy law, as did the Fourth Amendment rule about unreasonable searches, which the Framers certainly intended to cover postal mail." source: https://slate.com/technology/2013/06/nsa-surveillance-why-the-post-office-doesnt-spy-on-your-mail-the-way-nsa-spies-on-your-email.html https://slate.com/technology/2013/06/nsa-surveillance-why-th...
- ummwhat 7y ago
  The answer is yes it is still your data. There are relevant supreme Court precedents which resolve this unambiguously. Hence why you need a warrant to tap a phone line instead of just claiming "it's the phone companies signal".
deleted 7y ago
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bb88 7y ago

If you're an originalist (and I'm not saying that I am), data in transmit is not necessarily protected by that amendment If your data has left your house, is it really your data, or is it Google's say?

fuzz4lyfe 7y ago
When you send a letter it does not belong to the post office while in transit. Why are bits on a hard drive any different?
- bb88 7y ago
  Can you point an originalist to the constitutional clause or amendment that grants such a right?
  - Rooster61 7y ago
    It probably isn't in the Constitution, but I would not be surprised if there was legal precedent for such a thing.
    - bb88 7y ago
      That's the problem with an originalist, settled law isn't necessarily settled. Previous court decisions may have been decided incorrectly.
  - homonculus1 7y ago
    No clause or amendment grants any right. Rights are explicitly innate to the individual and not granted by or limited to the constitution.
    - bb88 7y ago
      An originalist would point out that the constitution does not grant rights, but merely limits the laws and actions that government can take. Despite what the constitution says, human rights are not self evident, they must in fact be legalized.
      - MereInterest 7y ago
        This hypothetical originalist would have an interesting time dealing with the ninth amendment, which explicitly states that the Bill of Rights is not a full listing of all human rights. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
- txcwpalpha 7y ago
  Inspectors can and do inspect the contents many types of mail, though, so I'm not sure this example is a good one for those championing privacy... To elaborate: when using the US Postal Service, only domestic "First Class Mail" and "Priority Mail" (these are different and distinct from standard mail) is protected and requires a probable cause warrant to open and inspect. Other types of mail, as well as all packages shipped through private companies like UPS and FedEx, do not require warrants and can be opened and inspected whenever the post office or UPS/FedEx feel like it. There isn't an expectation of privacy for these packages, and certainly no constitutional protection of it.
  - 4ntonius8lock 7y ago
    fuzz4lyfe > When you send a letter it does not belong to the post office while in transit txcwpalpha > Inspectors can and do inspect the contents... of mail txcwpalpha > ...for packages There's a scarecrow argument if I've ever seen one. Someone says A is 1. You say A isn't 1 because AB is 2. Sneaky. There certainly is an expectation of privacy in my mail CORRESPONDENCE (which is what this whole thing is about... communication, not package sending). Why shouldn't there be for my e mail correspondence?
    - txcwpalpha 7y ago
      I did not say that A isn't 1. In fact, in my comment I specifically acknowledge that A is 1 (some types of mail are protected by the 4th amendment). Please do not try to construct a straw man. The point is that there is already a determination that not all items sent through mail services have an expectation of privacy. If we're drawing a parallel between physical mail and e-mail, this lends to the belief that such a determination could also be made for items sent through electronic media, especially items sent through electronic media that is owned by private companies (ISPs), similar to how private shipping companies do not provide 4th amendment protection. >There certainly is an expectation of privacy in my mail CORRESPONDENCE Not all mail correspondence, which is the point. If you send a letter through USPS standard mail, there is no expectation of privacy. If you send a document through UPS, there is no expectation of privacy. Also, you're getting hung up on the usage of the words "package" vs "correspondence" vs "mail" vs "letter". This is an unnecessary distinction. A letter is just a "package" that contains paper with information on it. The law doesn't see a difference. In my original comment, you should read the words package/letter/mail/correspondence interchangeably.
- imglorp 7y ago
  They are different because of aggregation: the hundreds of signals an organization has from your activities are combined into thousands of derived signals, which you probably would not have offered the organization freely. Just for example, by combining several data points, Skynet can infer that those people are acquainted and add that fact to the corpus about you both. You would never give a retailer a full dump of everyone in your address book, but it's pretty much given they know it.
- nickles 7y ago
  > When you send a letter it does not belong to the post office while in transit. You only have an expectation of privacy of the contents of the letter. You have no such expectation of anything on the envelope itself (e.g. sender/receiver address). The government contends that it only collects analogous metadata in transit, not the contents of the communication itself (although this is debatable).
bryanrasmussen 7y ago
Isn't that data one of your effects?
garmaine 7y ago
That wasn't the only program. They were also tapping into cell phones and laptop webcams for remote surveillance on targeted subjects, but without any constitutionally required warrant checks in place.
- bb88 7y ago
  But was it illegal? And how would you know that such a warrant didn't actually exist in a court, particularly the FISA court? It's possible that with FISA, everything under the so called warrantless wiretap program might be legal -- you just don't have access to prove it is.
  - garmaine 7y ago
    Have you been paying attention? At the time that Snowden made his revelations, no approval was necessary for an NSA analyst to activate a webcam, for example. They literally just had to select from a menu of totally broad reasons on an internal web form documenting the access. They had a congressionally granted exemption from requiring case-by-case FISA approval. This is now all open and acknowledged, and found to be illegal.
    - bb88 7y ago
      Last I checked, the courts made the final decision on what's legal and what's not. I haven't seen the 9-0 Supreme Court decision that says that warrantless wiretapping is illegal. Maybe you can point it out to me? The point isn't that I disagree with you on what should be legal or illegal, I very much agree with you. The point is, unless something enters a court of law for ajudication, it's very much in the land of the political. And there's a lot of darkness surrounding the FISA court, much of which cannot be challenged. Is it legal? It looks like the courts say it is.
      - garmaine 7y ago
        It was tested in court and found to be illegal: https://www.reuters.com/article/us-usa-security-nsa/nsas-phone-spying-program-ruled-illegal-by-appeals-court-idUSKBN0NS1IN20150507 https://www.reuters.com/article/us-usa-security-nsa/nsas-pho...
behringer 7y ago
Edward Snowden showed us that the NSA can and does access our webcams remotely. So they are watching you even when you don't know your data is leaving your house.
- lern_too_spel 7y ago
  Where "our webcams" are the webcams of non-US citizens outside the US who are of interest to national security.
  - behringer 7y ago
    Wrong. That's the entire point Snowden was making. That they are engaged in illegal domestic surveillance.
    - lern_too_spel 7y ago
      The only illegal domestic surveillance program Snowden leaked was phone metadata collection. Where did any of his leaks say that the NSA would hack domestic webcams at will?
deogeo 7y ago
If I entrust data to Google, or my possessions to the safe of a bank, I am still injured when that trust is broken. I gave conditional access to one entity, not to everyone, and not to the government.
Rooster61 7y ago
Not trying to plug Andrew Yang here, but this is a big part of his platform. He's advocating for a right-to-data bill that would make any and all data collected and transmitted yours. If that goes into place, your data immediately becomes subject to these amendments. It does away with some of the legal grey area that surrounds data.
- nostrademons 7y ago
  Curious how this handles data that is not specifically about one person, but is about the relationships between many people? Facebook's social graph, for instance: is the fact that I am friends with someone on Facebook my property, their property, or Facebook's property? Or this conversation we're having on HN: you could argue that we each own our words, but the conversation itself (including contextual replies, quoted text, arguments responded to, etc.) is its own entity that doesn't make sense when individual posts are removed, and that's why HN has a time limit for deleting your posts. What about a crowd shot that has various other people in the background? Is it property of the photographer, the clearly-visible foreground subjects, or anyone who happens to appear in it? Does that mean someone who goes around tourist attractions photobombing people has a right to claim all your family photos?
  - Rooster61 7y ago
    I haven't seen what would actually be in the bill, and I am curious as well. Hence one of the reasons I prefaced by saying I'm not plugging him :) Questions like these also partly explain why legislators are so reluctant to create law for such things.
  - 317070 7y ago
    It is the basic premise for GDPR in the EU. While convoluted (it did not end up that bad, or as bad as you'd predict), it actually delivers this idea in a workable way.
colejohnson66 7y ago
Re: originalists: The framers couldn’t’ve imagined the internet, and, despite that, what you say on the internet is protected by the first amendment as it is speech. Why would the fourth amendment be any different?
- deleted 7y ago
  [deleted]
- Rooster61 7y ago
  Because the first and fourth amendments guarantee different rights. The first guarantees that you essentially can't be arrested for speech. It says nothing about whether or not your speech can be collected and recorded. The fourth forbids the government with searching the enumerated items without cause or a warrant. Very different things.
  - colejohnson66 7y ago
    My point was that the “originalist” view of the constitution falls apart when you see that the Supreme Court has ruled that speech that the framers couldn’t even imagine is protected. They've done the same with the fourth (you can’t search a car without a warrant or probable cause even if it’s in public... to an extent). I was arguing that if you want to take an originalist view to the constitution, you’d need to give up your protection of speech online and in many other areas.
AndrewBissell 7y ago
Among others, Neil Gorsuch is one originalist-friendly justice who has strongly argued against this interpretation of the 4th Amendment in a modern data transmission context.
homonculus1 7y ago
If you're an originalist, spying on everybody is not one of the enumerated powers of the federal government.
mattkrause 7y ago
Is that really true? In 1789, "papers", being made of actual paper, were in transit for much longer in 1789 and there are absolutely draconian laws against destruction and obstruction of the mail. For example, 18 USC § 1702, which prohibits "with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same" also doesn't have a carve-out for governmental purposes.
- bb88 7y ago
  Mail protection need not fall under 4th amendment protections if it's protected by laws passed by congress. Another question would be: would mail be protected without that law and just by the 4th amendment itself?
  - SamReidHughes 7y ago
    If it’s in an envelope, sure, but not if it’s on a postcard.
michaelmrose 7y ago
I don't think that logic even works from an originalist perspective. If the bank holds a safe deposit box on your behalf it doesn't become the banks property unless you abandon it and searching it is no less legally problematic because its lies within the banks property. One doesn't even have to reach into the realms of tech not imagined at the founders time to find useful analogies. Furthermore the idea that a document written hundreds of years ago can't be reinterpreted in the context of framers intentions and new reality is fundamentally broken. It means you have to rewrite from scratch every century.
eternalban 7y ago
"It’s a question fit for Benjamin Franklin. Prior to the American Revolution, Franklin had been the postmaster for the British Crown, establishing postal delivery routes throughout the colonies. In the early days, it was only official government communications that passed through the post, and it was “sealed against inspection”. Later, when the mail could be used by citizens, carriers would regularly read others’ mail along their long routes for entertainment. Franklin, eager to maintain the sanctity of the mail in a time of political upheaval, developed a set of regulations and affixed locks to postal carriers’ saddle bags. Franklin’s early regulations became part of the basis for privacy law, as did the Fourth Amendment rule about unreasonable searches, which the Framers certainly intended to cover postal mail." source: https://slate.com/technology/2013/06/nsa-surveillance-why-the-post-office-doesnt-spy-on-your-mail-the-way-nsa-spies-on-your-email.html https://slate.com/technology/2013/06/nsa-surveillance-why-th...
ummwhat 7y ago
The answer is yes it is still your data. There are relevant supreme Court precedents which resolve this unambiguously. Hence why you need a warrant to tap a phone line instead of just claiming "it's the phone companies signal".

deleted 7y ago

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