3 ms·

I know this is a crazy idea but just hear me out. What if any government agency at any level were required to get a warrant signed off by a judge, that showed

by efitz 3y ago

I know this is a crazy idea but just hear me out. What if any government agency at any level were required to get a warrant signed off by a judge, that showed probable cause, before they could get your data from a 3rd party, and what if the 3rd party was required by law to notify you before turning over that data, so that you could get a lawyer and challenge the warrant? I know, crazy, right? It’s like what if we actually honored the 4th amendment.

wnevets 3y ago
> 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. Which part of the 4th amendment is being violated by the government in this case?
- efitz 3y ago
  Uh, the part where they track people’s location based on cell phone location data purchased without a warrant, for purposes of criminal investigations?
  - wnevets 3y ago
    A person's location or whereabouts isn't mentioned in the 4th amendment.
    - efitz 3y ago
      That would be the “secure in their persons”, and probably “secure in their papers” (the latter has been broadly interpreted by the courts to include electronic information, not just physical papers). US courts have widely ruled that data a that a third party collects/generates/maintains on a person does not fall under the 4th amendment. Many other western countries have actually decided the opposite, that you have a privacy right in data about you. Personally I think US interpretation is wrong and inconsistent with the 4th amendment. Congress could easily settle the issue wrt federal law enforcement.
      - wnevets 3y ago
        I'm not a lawyer but why would your location be considered “secure in their persons”? If you show up on a traffic camera somewhere for example they don't need a warrant or anything to find out your location or whereabouts. Your location isn't protected at all. edit: Example https://www.bostonglobe.com/metro/2016/08/21/new-mass-gantries-can-alert-authorities-certain-vehicles-pass-through/byLvPAMxstcbfGyYU1i5HP/story.html https://www.bostonglobe.com/metro/2016/08/21/new-mass-gantri... https://gizmodo.com/e-zpass-is-the-best-tracking-device-thats-already-in-y-1308535900 https://gizmodo.com/e-zpass-is-the-best-tracking-device-that...
      - efitz 3y ago
        Responding to peer comment. It’s public information if a law enforcement officer happens to see you in public. It’s not public information if their surveillance is via a 3rd party whose information is not public. Arguably even if you’re in public, surveillance (looking for you specifically) should require a warrant. We could debate that.
- d_sem 3y ago
  I would say we reinterpret the 18th century definition of "papers". I quite like Alan Kays comment in a talk sometime in the 1980's where he said something of the effect that a blue thought in the 1960's was to realize that paper is just computer memory you can't change. I think if you try to define what was interpreted by "papers" in a pre-digital context you would conclude it is sufficiently analogous to many things in our modern world. By "papers" they likely meant diaries, personal mail, accounting logs, ship manifests, personal inventories, order histories, receipts for travel. All things which may have been written down on a piece of paper which are now logged on our phones. If you take an originalist argument that the constitution is static and cannot be reinterpreted/amended you have to first justify why you think amendments like the banning of slavery or women's voting rights amendments are not legitimate in the United States. We certainly have a culture of defining rights which our predecessors did not explicitly call out in the early years of its history. Even male suffrage (non-land owning males) in the late 19th century was a revolutionary step in the definition and expansion of citizens rights.
  - wnevets 3y ago
    > I think if you try to define what was interpreted by "papers" in a pre-digital context you would conclude it is sufficiently analogous to many things in our modern world. By "papers" they likely meant diaries, personal mail, accounting logs, ship manifests, personal inventories, order histories, receipts for travel. All things which may have been written down on a piece of paper which are now logged on our phones. Considering data digital as papers is perfectly reasonable but the government still isn't searching or seizures your papers. They're buying someone elses "papers".
    - lukeschlather 3y ago
      This whole concept that "oh a private company has stolen my papers, well that's not a problem" doesn't seem to reflect a strict textual reading of the 4th amendment.
      - wnevets 3y ago
        But the private company isn't stealing your papers, they're recording their own.
ashwagary 3y ago
>What if any government agency at any level were required to get a warrant signed off by a judge, that showed probable cause... Buy and publish all congress members location data for a long enough period and I think you'll get your wish.

by efitz 3y ago

wnevets 3y ago

> 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. Which part of the 4th amendment is being violated by the government in this case?

efitz 3y ago
Uh, the part where they track people’s location based on cell phone location data purchased without a warrant, for purposes of criminal investigations?
- wnevets 3y ago
  A person's location or whereabouts isn't mentioned in the 4th amendment.
  - efitz 3y ago
    That would be the “secure in their persons”, and probably “secure in their papers” (the latter has been broadly interpreted by the courts to include electronic information, not just physical papers). US courts have widely ruled that data a that a third party collects/generates/maintains on a person does not fall under the 4th amendment. Many other western countries have actually decided the opposite, that you have a privacy right in data about you. Personally I think US interpretation is wrong and inconsistent with the 4th amendment. Congress could easily settle the issue wrt federal law enforcement.
    - wnevets 3y ago
      I'm not a lawyer but why would your location be considered “secure in their persons”? If you show up on a traffic camera somewhere for example they don't need a warrant or anything to find out your location or whereabouts. Your location isn't protected at all. edit: Example https://www.bostonglobe.com/metro/2016/08/21/new-mass-gantries-can-alert-authorities-certain-vehicles-pass-through/byLvPAMxstcbfGyYU1i5HP/story.html https://www.bostonglobe.com/metro/2016/08/21/new-mass-gantri... https://gizmodo.com/e-zpass-is-the-best-tracking-device-thats-already-in-y-1308535900 https://gizmodo.com/e-zpass-is-the-best-tracking-device-that...
    - efitz 3y ago
      Responding to peer comment. It’s public information if a law enforcement officer happens to see you in public. It’s not public information if their surveillance is via a 3rd party whose information is not public. Arguably even if you’re in public, surveillance (looking for you specifically) should require a warrant. We could debate that.
d_sem 3y ago
I would say we reinterpret the 18th century definition of "papers". I quite like Alan Kays comment in a talk sometime in the 1980's where he said something of the effect that a blue thought in the 1960's was to realize that paper is just computer memory you can't change. I think if you try to define what was interpreted by "papers" in a pre-digital context you would conclude it is sufficiently analogous to many things in our modern world. By "papers" they likely meant diaries, personal mail, accounting logs, ship manifests, personal inventories, order histories, receipts for travel. All things which may have been written down on a piece of paper which are now logged on our phones. If you take an originalist argument that the constitution is static and cannot be reinterpreted/amended you have to first justify why you think amendments like the banning of slavery or women's voting rights amendments are not legitimate in the United States. We certainly have a culture of defining rights which our predecessors did not explicitly call out in the early years of its history. Even male suffrage (non-land owning males) in the late 19th century was a revolutionary step in the definition and expansion of citizens rights.
- wnevets 3y ago
  > I think if you try to define what was interpreted by "papers" in a pre-digital context you would conclude it is sufficiently analogous to many things in our modern world. By "papers" they likely meant diaries, personal mail, accounting logs, ship manifests, personal inventories, order histories, receipts for travel. All things which may have been written down on a piece of paper which are now logged on our phones. Considering data digital as papers is perfectly reasonable but the government still isn't searching or seizures your papers. They're buying someone elses "papers".
  - lukeschlather 3y ago
    This whole concept that "oh a private company has stolen my papers, well that's not a problem" doesn't seem to reflect a strict textual reading of the 4th amendment.
    - wnevets 3y ago
      But the private company isn't stealing your papers, they're recording their own.

ashwagary 3y ago

>What if any government agency at any level were required to get a warrant signed off by a judge, that showed probable cause... Buy and publish all congress members location data for a long enough period and I think you'll get your wish.