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We need a Supreme Court ruling or law that says if the government doesn’t have a warrant to collect your data, they also can’t buy it from third parties. We al

We need a Supreme Court ruling or law that says if the government doesn’t have a warrant to collect your data, they also can’t buy it from third parties. We also need privacy protections so these companies wouldn’t exist in the first place.

closeparen 5y ago
Almost all investigative work is asking people to share information that they don’t legally have to.
- jkhdigital 5y ago
  Interviewing a person is not "search and seizure"; the two things are categorically different.
  - tzs 5y ago
    So looking at all your comments so far, it appears that: 1. If Bob is selling data that he legally obtained about Alice and legally can sell, it is a search if the government buys that data from Bob, and 2. If the government interviews Bob and Bob gives them data about Alice, it is not a search. I'm failing to see the distinction you are making.
austincheney 5y ago
Why? I understand the subject is unpleasant but I don't see anything that remotely qualifies as legal over reach. Users must sign a consent statement to a terms of services agreement. That is a voluntary action where users erode their own privacy protections and surrender their contributions. Anything that happens later is completely incidental and solely between the data owner (which is not the user) and the third party.
- jkhdigital 5y ago
  Irrelevant to the 4th amendment. A service's TOS does not absolve the government of its constitutional prohibition against unreasonable search and seizure. Buying data from a 3rd party service is still a search and seizure, much like paying a hitman is still first-degree murder. The question is whether it is reasonable.
  - austincheney 5y ago
    Social media is not the third party once you surrender your data to them. You, the user/product, become the third party in any forthcoming transactions. The only legal challenge therein are details related to exposure of bulk PII which remain protected without regard for the fourth amendment by other laws. This has been the case for decades. I remember before the internet publishers selling their users subscription and preference data to solicitors. People don’t gain new privacy protections where they never existed prior, especially if the absence of expectations is explicit and agreed upon by the user.
    - jkhdigital 5y ago
      I’m confused. Aren’t we talking about the 4th amendment here? The implied “right to privacy” is only in relation to the government. To me, this means there is a categorical difference between random third parties buying data about you, and the government buying data about you.
      - austincheney 5y ago
        No. The fourth amendment does not apply here. In US legal doctrine there is no right to privacy. The fourth amendment exists to provide a right against improper search and seizure.
alksjdalkj 5y ago
If a private company can buy the data why shouldn't the government be able to? The real solution is to not allow the data to be sold to anyone.
- pfortuny 5y ago
  Because the Government has a strictly limited power: it is subsidiary.
  - whimsicalism 5y ago
    There are plenty of things government can do that private industry does not have the ability to do. Making transactions (and even paying informants for information) are and should be within the power of the government.
- VRay 5y ago
  Private companies (theoretically/ideally) don't have the power of life and death over you
  - baldeagle 5y ago
    Like literally, the amount of instances where the government is weighing life/death is very small, even smaller at the federal level (most death penalty cases are against state laws). If you're meaning in the 'government programs can greatly affect my quality of life', then private companies can totally do that too - through targeted advertising.
    - nescioquid 5y ago
      That the government has power over you at all is what matters, not how often it exercises that power against you. Already parallel case construction is a troubling problem (given the warrantless domestic surveillance). Grant the government access to surveillance capitalism / ad tech, and now you've got another vector to launder evidence.
    - 5y ago
deleted 5y ago
[deleted]
whimsicalism 5y ago
I absolutely think that the government should be able to purchase data in order to conduct investigations. Unlike private actors, governmental actors are publicly constrained in their actions and representatives of the will of our society.
- ruined 5y ago
  the subpoena system, for all its failings, is that public constraint. if it can be circumvented, that constraint effectively no longer exists.
  - whimsicalism 5y ago
    The requirement of a subpoena doesn't prevent the government from taking actions that private actors could legally do, it compels private actors to act according to state whims. If someone volunteers information, it is not a "circumvention" of the subpoena. Breaking into Google and stealing information for a criminal investigation would be circumventing it.
    - WarOnPrivacy 5y ago
      > The requirement of a subpoena doesn't prevent the government from taking actions that private actors could legally do Irrelevant. Gov wants data, Gov gets a narrowly targeted warrant first. Beyond this lies 4A violations.
      - oh_sigh 5y ago
        Can the government buy an autobiography I wrote detailing my crimes to help their investigation? Or is that a 4th amendment violation?
        WarOnPrivacy 5y ago
        The Gov can acquire data that you - with full willful consent - have chosen to make publicly available. eg: public social media posts.
wintermutestwin 5y ago
https://en.wikipedia.org/wiki/Third-party_doctrine https://en.wikipedia.org/wiki/Third-party_doctrine
- nybble41 5y ago
  The Third-Party Doctrine is about the ability to compel third parties to turn over information they hold on others. They don't need to resort to that when they can just buy the data on the open market.
mywittyname 5y ago
We can't rely on SCOTUS to make this ruling for another 50+ years, so our best hope is to start with state legislators. The majority of law enforcement happens at a state level, and most state legislators aren't as hamstrung as the federal one is, so this is the easiest way to achieve the most impactful results. Also, POTUS is in charge of most federal law enforcement agencies. So it might be possible to handle this at a federal level through an executive order. Obviously, this doesn't have the staying power of a proper law, but it's something.
- mmcdermott 5y ago
  Feels like it would be more airtight to amend the Constitution. Why hope that precedence falls a certain way instead of removing any ambiguity from the law?
  - WarOnPrivacy 5y ago
    There's a good chance the Constitution covers this now. What we need are uncompromised courts to hear and rule on 4A violations.
    - mmcdermott 5y ago
      I'd agree that the 4th Amendment ought to cover it. It isn't unambiguous, though. It isn't hard to see how a lawyer could point out that "and to forever secure the people, their persons, houses, papers, and effects, against all unreasonable searches and seizures under the guise of law" says nothing about purchasing data from a 3rd party. This wasn't really something that would have come up in the 18th century. Extending the letter to match the spirit is why reflection is built into the runtime of the current constitution.
      - manquer 5y ago
        The federalist society which has hugely influential attorney and judicial membership believes in a textual interpretation of the constitution. They wouldn't go for a sensible modern reading but instead stick to gospel like dogma on how it was intended to be read 250 years ago I guess.
swayvil 5y ago
We need to make a law that says the wolves can't eat the sheep
jonathankoren 5y ago
Third party doctrine has been decided on a case by case basis with respect to the type of data provided. Recently the SCOTUS has been pushing back on this, in particularly around automatic data sharing intrinsic to the operation of a device, such as cell phone location records. However, no one has gone as far as Utah in requiring warrants. https://en.wikipedia.org/wiki/Third-party_doctrine https://en.wikipedia.org/wiki/Third-party_doctrine https://www.wired.com/story/utah-digital-privacy-legislation/ https://www.wired.com/story/utah-digital-privacy-legislation...
david-cako 5y ago
Why should dark web data brokers get to look at all of my nudes but not the Supreme Court?
- WarOnPrivacy 5y ago
  Web data brokers can't legally kick in your door and kill everyone inside.
  - oh_sigh 5y ago
    Neither can the government generally.
    - nybble41 5y ago
      It may not be precisely legal, but they're unlikely to suffer any repercussions if they do it anyway. Which amounts to the same thing in the end.
downandout 5y ago
If SCOTUS outlawed buying the data, they’d just find ways around that too. Maybe they’d just start creating apps and directly monitoring people. With an unlimited marketing and development budget, they could wind up on the majority of Americans’ phones pretty fast. Depending on the kinds of apps they created, they might get warrantless access to millions of bank accounts, text messages, emails, video conferences, full real-time location tracking, and more.
- salawat 5y ago
  You'd get industry screaming bloody murder faster than you can say 'Uncle Sam'. See why the NWS/NOAA are restricted in the weather products they can offer, and why a simplified tax filing option has been so long in coming.
  - downandout 5y ago
    Oh I don’t think anyone would know about the government being behind it. They could do it through front companies. The government already does all kinds of other activities through front companies.
- coldacid 5y ago
  They'd just nudge their other Five Eyes friends into sharing their copies.
- jkhdigital 5y ago
  Warrantless access to all of those things is basically the definition of an unreasonable search and seizure. It is prima facie prohibited by the 4th amendment. There is no "way around" it.
- im3w1l 5y ago
  Startup idea: Buy dirt on your enemies and donate it to the treasury - with just a press of a button! Now they aren't buying it anymore so all should be well.
JasonFruit 5y ago
Not a Supreme Court ruling: if there's no law outlawing it, there's no basis for them to rule against it. Do you really want five unelected, unaccountable lawyers deciding this matter?
- bagacrap 5y ago
  The judiciary doesn't just rule on the constitutionality of laws (actions by the legislature) but also actions by the executive, for example vaccine mandates.
  - judge2020 5y ago
    Sure, but the CIA has existed since 1947- if it were illegal for them to gather information on citizens from companies who willingly give it up (for free or for sale), it would've already been decided and would apply to today's data.
- nostromo 5y ago
  Here you go: "Amendment IV: 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."
  - deleted 5y ago
    [deleted]
  - deleted 5y ago
    [deleted]
  - ukd1 5y ago
    But, nothing is being searched or seized here; it seems like people gave up their personal data, ignored or didn't read a ToS, and companies are selling it - not being forced to give it up. I don't like it, but does it mean it's illegal?
ineedasername 5y ago
I think instead we need people to not give away their personal information.
- rp1 5y ago
  But why? I would like to be able to text my wife while she’s at work. Shouldn’t I be free to do that without sacrificing my right to privacy? Or should we just keep technology the same as it was in the 18th century?
  - ineedasername 5y ago
    Please take a closer look at the article. Directly collecting texts do not appear to be the type of data involved. If they were included in any way, it would be the result of users granting apps access to them. Also please note-- and I should have made this note in my original post-- I'm. It saying people can avoid data acquisition by 3rd parties. Merely that users frequently give away far, far more than they have to: whenever they install an app that asks for more permission than necessary to function. Whenever they agree to the popup in browsers that as for access to location data or to receive notifications from the site. (I say something about cookies and JavaScript, but many sites are useless without JavaScript and navigating the dark patterns for those sites that allow cookie preferences is ridiculous. A good ad blocker will at least catch some of that though./
2OEH8eoCRo0 5y ago
Are warrants necessary? I thought a warrant was a legal way to compel compliance. If the company who owns the data wants to sell it then that's that. It either shouldn't be collected or if it is then the sale should be prohibited.
- jkhdigital 5y ago
  If I hire a hitman who murders you, I will be guilty of first-degree murder. Our legal doctrine is sophisticated enough to handle this kind of first-order misdirection.
  - tzs 5y ago
    The hitman is committing a crime. You are hiring the hitman to commit that crime. The data broker selling your information is not committing a crime, so the situation is not at all comparable.

closeparen 5y ago

Almost all investigative work is asking people to share information that they don’t legally have to.

jkhdigital 5y ago
Interviewing a person is not "search and seizure"; the two things are categorically different.
- tzs 5y ago
  So looking at all your comments so far, it appears that: 1. If Bob is selling data that he legally obtained about Alice and legally can sell, it is a search if the government buys that data from Bob, and 2. If the government interviews Bob and Bob gives them data about Alice, it is not a search. I'm failing to see the distinction you are making.

austincheney 5y ago

Why? I understand the subject is unpleasant but I don't see anything that remotely qualifies as legal over reach. Users must sign a consent statement to a terms of services agreement. That is a voluntary action where users erode their own privacy protections and surrender their contributions. Anything that happens later is completely incidental and solely between the data owner (which is not the user) and the third party.

jkhdigital 5y ago
Irrelevant to the 4th amendment. A service's TOS does not absolve the government of its constitutional prohibition against unreasonable search and seizure. Buying data from a 3rd party service is still a search and seizure, much like paying a hitman is still first-degree murder. The question is whether it is reasonable.
- austincheney 5y ago
  Social media is not the third party once you surrender your data to them. You, the user/product, become the third party in any forthcoming transactions. The only legal challenge therein are details related to exposure of bulk PII which remain protected without regard for the fourth amendment by other laws. This has been the case for decades. I remember before the internet publishers selling their users subscription and preference data to solicitors. People don’t gain new privacy protections where they never existed prior, especially if the absence of expectations is explicit and agreed upon by the user.
  - jkhdigital 5y ago
    I’m confused. Aren’t we talking about the 4th amendment here? The implied “right to privacy” is only in relation to the government. To me, this means there is a categorical difference between random third parties buying data about you, and the government buying data about you.
    - austincheney 5y ago
      No. The fourth amendment does not apply here. In US legal doctrine there is no right to privacy. The fourth amendment exists to provide a right against improper search and seizure.

alksjdalkj 5y ago

If a private company can buy the data why shouldn't the government be able to? The real solution is to not allow the data to be sold to anyone.

pfortuny 5y ago
Because the Government has a strictly limited power: it is subsidiary.
- whimsicalism 5y ago
  There are plenty of things government can do that private industry does not have the ability to do. Making transactions (and even paying informants for information) are and should be within the power of the government.
VRay 5y ago
Private companies (theoretically/ideally) don't have the power of life and death over you
- baldeagle 5y ago
  Like literally, the amount of instances where the government is weighing life/death is very small, even smaller at the federal level (most death penalty cases are against state laws). If you're meaning in the 'government programs can greatly affect my quality of life', then private companies can totally do that too - through targeted advertising.
  - nescioquid 5y ago
    That the government has power over you at all is what matters, not how often it exercises that power against you. Already parallel case construction is a troubling problem (given the warrantless domestic surveillance). Grant the government access to surveillance capitalism / ad tech, and now you've got another vector to launder evidence.
  - 5y ago

deleted 5y ago

[deleted]

whimsicalism 5y ago

I absolutely think that the government should be able to purchase data in order to conduct investigations. Unlike private actors, governmental actors are publicly constrained in their actions and representatives of the will of our society.

ruined 5y ago
the subpoena system, for all its failings, is that public constraint. if it can be circumvented, that constraint effectively no longer exists.
- whimsicalism 5y ago
  The requirement of a subpoena doesn't prevent the government from taking actions that private actors could legally do, it compels private actors to act according to state whims. If someone volunteers information, it is not a "circumvention" of the subpoena. Breaking into Google and stealing information for a criminal investigation would be circumventing it.
  - WarOnPrivacy 5y ago
    > The requirement of a subpoena doesn't prevent the government from taking actions that private actors could legally do Irrelevant. Gov wants data, Gov gets a narrowly targeted warrant first. Beyond this lies 4A violations.
    - oh_sigh 5y ago
      Can the government buy an autobiography I wrote detailing my crimes to help their investigation? Or is that a 4th amendment violation?
      - WarOnPrivacy 5y ago
        The Gov can acquire data that you - with full willful consent - have chosen to make publicly available. eg: public social media posts.

wintermutestwin 5y ago

https://en.wikipedia.org/wiki/Third-party_doctrine https://en.wikipedia.org/wiki/Third-party_doctrine

nybble41 5y ago
The Third-Party Doctrine is about the ability to compel third parties to turn over information they hold on others. They don't need to resort to that when they can just buy the data on the open market.

mywittyname 5y ago

We can't rely on SCOTUS to make this ruling for another 50+ years, so our best hope is to start with state legislators. The majority of law enforcement happens at a state level, and most state legislators aren't as hamstrung as the federal one is, so this is the easiest way to achieve the most impactful results. Also, POTUS is in charge of most federal law enforcement agencies. So it might be possible to handle this at a federal level through an executive order. Obviously, this doesn't have the staying power of a proper law, but it's something.

mmcdermott 5y ago
Feels like it would be more airtight to amend the Constitution. Why hope that precedence falls a certain way instead of removing any ambiguity from the law?
- WarOnPrivacy 5y ago
  There's a good chance the Constitution covers this now. What we need are uncompromised courts to hear and rule on 4A violations.
  - mmcdermott 5y ago
    I'd agree that the 4th Amendment ought to cover it. It isn't unambiguous, though. It isn't hard to see how a lawyer could point out that "and to forever secure the people, their persons, houses, papers, and effects, against all unreasonable searches and seizures under the guise of law" says nothing about purchasing data from a 3rd party. This wasn't really something that would have come up in the 18th century. Extending the letter to match the spirit is why reflection is built into the runtime of the current constitution.
    - manquer 5y ago
      The federalist society which has hugely influential attorney and judicial membership believes in a textual interpretation of the constitution. They wouldn't go for a sensible modern reading but instead stick to gospel like dogma on how it was intended to be read 250 years ago I guess.

swayvil 5y ago

We need to make a law that says the wolves can't eat the sheep

jonathankoren 5y ago

Third party doctrine has been decided on a case by case basis with respect to the type of data provided. Recently the SCOTUS has been pushing back on this, in particularly around automatic data sharing intrinsic to the operation of a device, such as cell phone location records. However, no one has gone as far as Utah in requiring warrants. https://en.wikipedia.org/wiki/Third-party_doctrine https://en.wikipedia.org/wiki/Third-party_doctrine https://www.wired.com/story/utah-digital-privacy-legislation/ https://www.wired.com/story/utah-digital-privacy-legislation...

david-cako 5y ago

Why should dark web data brokers get to look at all of my nudes but not the Supreme Court?

WarOnPrivacy 5y ago
Web data brokers can't legally kick in your door and kill everyone inside.
- oh_sigh 5y ago
  Neither can the government generally.
  - nybble41 5y ago
    It may not be precisely legal, but they're unlikely to suffer any repercussions if they do it anyway. Which amounts to the same thing in the end.

downandout 5y ago

If SCOTUS outlawed buying the data, they’d just find ways around that too. Maybe they’d just start creating apps and directly monitoring people. With an unlimited marketing and development budget, they could wind up on the majority of Americans’ phones pretty fast. Depending on the kinds of apps they created, they might get warrantless access to millions of bank accounts, text messages, emails, video conferences, full real-time location tracking, and more.

salawat 5y ago
You'd get industry screaming bloody murder faster than you can say 'Uncle Sam'. See why the NWS/NOAA are restricted in the weather products they can offer, and why a simplified tax filing option has been so long in coming.
- downandout 5y ago
  Oh I don’t think anyone would know about the government being behind it. They could do it through front companies. The government already does all kinds of other activities through front companies.
coldacid 5y ago
They'd just nudge their other Five Eyes friends into sharing their copies.
jkhdigital 5y ago
Warrantless access to all of those things is basically the definition of an unreasonable search and seizure. It is prima facie prohibited by the 4th amendment. There is no "way around" it.
im3w1l 5y ago
Startup idea: Buy dirt on your enemies and donate it to the treasury - with just a press of a button! Now they aren't buying it anymore so all should be well.

JasonFruit 5y ago

Not a Supreme Court ruling: if there's no law outlawing it, there's no basis for them to rule against it. Do you really want five unelected, unaccountable lawyers deciding this matter?

bagacrap 5y ago
The judiciary doesn't just rule on the constitutionality of laws (actions by the legislature) but also actions by the executive, for example vaccine mandates.
- judge2020 5y ago
  Sure, but the CIA has existed since 1947- if it were illegal for them to gather information on citizens from companies who willingly give it up (for free or for sale), it would've already been decided and would apply to today's data.
nostromo 5y ago
Here you go: "Amendment IV: 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."
- deleted 5y ago
  [deleted]
- deleted 5y ago
  [deleted]
- ukd1 5y ago
  But, nothing is being searched or seized here; it seems like people gave up their personal data, ignored or didn't read a ToS, and companies are selling it - not being forced to give it up. I don't like it, but does it mean it's illegal?

ineedasername 5y ago

I think instead we need people to not give away their personal information.

rp1 5y ago
But why? I would like to be able to text my wife while she’s at work. Shouldn’t I be free to do that without sacrificing my right to privacy? Or should we just keep technology the same as it was in the 18th century?
- ineedasername 5y ago
  Please take a closer look at the article. Directly collecting texts do not appear to be the type of data involved. If they were included in any way, it would be the result of users granting apps access to them. Also please note-- and I should have made this note in my original post-- I'm. It saying people can avoid data acquisition by 3rd parties. Merely that users frequently give away far, far more than they have to: whenever they install an app that asks for more permission than necessary to function. Whenever they agree to the popup in browsers that as for access to location data or to receive notifications from the site. (I say something about cookies and JavaScript, but many sites are useless without JavaScript and navigating the dark patterns for those sites that allow cookie preferences is ridiculous. A good ad blocker will at least catch some of that though./

2OEH8eoCRo0 5y ago

Are warrants necessary? I thought a warrant was a legal way to compel compliance. If the company who owns the data wants to sell it then that's that. It either shouldn't be collected or if it is then the sale should be prohibited.

jkhdigital 5y ago
If I hire a hitman who murders you, I will be guilty of first-degree murder. Our legal doctrine is sophisticated enough to handle this kind of first-order misdirection.
- tzs 5y ago
  The hitman is committing a crime. You are hiring the hitman to commit that crime. The data broker selling your information is not committing a crime, so the situation is not at all comparable.