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Isn't that the very definition of a fishing expedition? "Let's find all the people that committed X crime in this database." It's insane with how much of this
by mtgx 6y ago
Isn't that the very definition of a fishing expedition?
"Let's find all the people that committed X crime in this database."
It's insane with how much of this unconstitutional stuff the U.S. government has gotten away with, all because Congress has suffered from systemic corruption for decades and no longer cares about the little guy, in the sense that it's no longer that dependent on the "little guy" to keep their jobs (as Larry Lessig would put it).
If they can get donations from rich corporations or friends, it's fine by them to screw over the little guy, because that's mostly all they need to keep their jobs.
- rayiner 6y agoCan you explain to me what’s “unconstitutional” about this?
- deleted 6y ago[deleted]
- jedberg 6y agoIt's a violation of the fourth amendment. I'd consider it an unreasonable search.
- Lammy 6y agoI'd consider it an unreasonable search as well, but I'd also like to hear a court agree with me.
- rayiner 6y agoWhat is being unreasonably searched and who does it belong to? The 4th amendment says: > The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.] While digital records can easily be considered “papers” the function of the possessive adjective “their” in English hasn’t changed since 1791. A person can complain about an unreasonable search of their digital papers. They can’t complain about the digital search of someone else’s digital papers, like Google’s IP logs. Section 215 used to allow the FBI to apply to the FISA court for “an order requiring the production of any tangible things”—a subpoena duces tecum. https://www.law.cornell.edu/wex/subpoena_duces_tecum https://www.law.cornell.edu/wex/subpoena_duces_tecum That legal instrument has been in use since the 1600s, and was imported into American law. Until the 20th century, nobody thought it was an unreasonable search under the 4th amendment for the government to subpoena documents where the person complaining about the subpoena had no property interest in the materials: https://commons.stmarytx.edu/cgi/viewcontent.cgi?article=1053&context=thestmaryslawjournal https://commons.stmarytx.edu/cgi/viewcontent.cgi?article=105... Of course under a “living constitution” style reasoning you can do whatever you want. (After all many people think there is a right to “privacy” in the constitution, when it never uses that word, but think there is no right to own firearms, which is right there in black and beige!) We are probably well on our way to that with the Supreme Court’s 2017 decision in Carpenter which found the fourth amendment protected cell phone location information. But if you care about what the Constitution actually says, it’s difficult to understand why a defendant can complain about a fourth amendment violation for a subpoena demanding that Google turn over Google’s IP logs.
- ClumsyPilot 6y agoThat is why ownership of information is so important, in the extreme, is the data I have on dropbox mine, or can government search it and claim they are searching dropbox's data? I thi k all reasonable people would agree that in case of cloud storage I would have legal standing to sue if the search is unreasonable. I probably don't have that standing for IP logs, but there is loads of grey in between. If you take the view GDPR takes, most data about the person is their data.
- rayiner 6y agoI agree the analysis is different under a GDPR view. And Congress could adopt a similar view and that would affect the 4th amendment analysis without changing the constitution.
- jedberg 6y agoIt's tricky for sure, I agree. If I write a letter to a bank, it's certainly theirs to turn over. But if I put a letter to someone else in my safe deposit box at the bank, they can't turn that over without a specific warrant and probable cause. Google searches are tricky for sure. I'm asking Google to look something up for me. What I looked up is their record. But for example, video rentals are specifically protected as are library checkout records. Even though I've asked those places to do something for me, they can't reveal that. So yeah, it's tricky, but at the end of the day it should probably count as my personal property.
- u801e 6y agoThe rest of the fourth amendment says: >> 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. I'm not a lawyer, but, from what I understand, probable cause refers to whether the law was violated by the party subject to the warrant. If Google has not violated the law, then what is probable cause referring to?
- deleted 6y ago[deleted]
- jimbob45 6y agoWouldn’t we have heard about this more from evidence presented in courts though? Like surely this is quantifiable if they’re actionably using ill-gotten evidence to prosecute.
- dundercoder 6y agoNot if it were part of the secret court proceedings happening under the same pretenses.
- esja 6y agoNot if they are using parallel construction: https://en.m.wikipedia.org/wiki/Parallel_construction https://en.m.wikipedia.org/wiki/Parallel_construction
- Lammy 6y agoThis looks like a job for Parallel Construction! Why would they even risk showing ill-gotten evidence? It would be way easier to just keep that evidence secret and have a cop stand in the right spot to arrest the mark as they go about their usual routine. They probably "look suspicious".
- chalst 6y agoCurrently prevailing constitutional law is that the right to privacy is an unenumerated right, one that is not explicitly set out in the Constitution but follows from common law and what the Constitution does say, especially the 4th and 5th Amendments [1]. That is the basis for Roe vs Wade, and so there's been a 40 year-long struggle by conservative lawyers that threatens this right. [1]: https://en.wikipedia.org/wiki/The_Right_to_Privacy_(article) https://en.wikipedia.org/wiki/The_Right_to_Privacy_(article)
- dehrmann 6y ago> That is the basis for Roe vs Wade, and so there's been a 40 year-long struggle by conservative lawyers that threatens this right. It takes a pretty creative reading of the constitution to infer a right to privacy, then infer that that grants the right to an abortion. One of the criticisms of Roe is that states were legalizing abortion on their own already, so doing it through the court angered people more than if it had happened in each state, and it's build on shaky constitutional underpinning, so it's not necessarily a robust decision.
- humanrebar 6y agoAlso note that constitutional amendments basically dropped off at that point as the legislature abrogated responsibility of protecting natural rights in favor of blaming others, especially the court system. Why hasn't a right to privacy amendment been discussed at all? Or even a Privacy Rights Act? Those would clarify things too.
- blackrock 6y ago> If they can get donations from rich corporations or friends LOL. Welcome to democracy.
- deleted 6y ago[deleted]
- dalbasal 6y agoIDK if this particular issue relates to money-politics that much. There's always something, but in this case the primary "lobby" is probably law enforcement and intelligence. Corporations like google are somewhere between neutral and pro-privacy, or rather, against sharing their data with law enforcement. Where money-politics does play, it's probably apathy related. This isn't an issue that donors care much about, therefore legislators may not care much.
- marcusverus 6y agoAgreed. I would attribute this to self-interest. No politician wants to be the guy who voted to "take tools away from the law enforcement", for fear they'll be attacked in the next election cycle for "aiding terrorists and human traffickers".