5 ms·

Basically it says the 4th Amendment does not apply online, at all. Incredibly, this was described as limiting CISPA, but it accomplishes the exact oppo

by panarky 15y ago

Basically it says the 4th Amendment does not apply online, at all. Incredibly, this was described as limiting CISPA, but it accomplishes the exact opposite. This is very, very bad. Far from the defense against malevolent foreign entities that the bill was described as by its authors, it is now an explicit attack on the freedoms of every American. Can someone with legal expertise tell me if this is this hyperbole or reality?

Xuzz 15y ago
Extreme hyperbole, as with much of TechDirt: http://news.ycombinator.com/item?id=3896572 http://news.ycombinator.com/item?id=3896572
rayiner 15y ago
Hyperbole. The 4th amendment never applied online (except in 1 Circuit with respect to e-mail).
- newman314 15y ago
  Why shouldn't it apply? That's what I have a hard time coming to terms with.
  - rayiner 15y ago
    The 4th amendment encompasses: "The right of the people to be secure in their persons, houses, papers, and effects..." The literal text applies to your house and your person. You can make certain analogies from there, but even paper mail is a bit of a stretch (it was found to be protected because the Constitution creates the postal service). For example, one analogy might be: if I go everyday to the local news stand, the 4th amendment doesn't prevent the government from asking the news guy what magazines I look at without a warrant. So why should the government need a warrant to ask Google what things I search for on their service? I'm not saying that its the right analogy, but rather that people who say "oh the 4th amendment obviously covers information online" are starting from the result they want and working backwards. The problem is two-fold. First, there is no general right to privacy in the Constitution. Privacy is a pretty modern concept. People in the 1700's had very little privacy even in the physical sense.[1] What the 4th amendment protects is a narrower right: the sanctity of your home and personal effects and freedom from physical government harassment. Second, we don't have a well-defined idea of privacy even today. Why should the Constitution protect information I freely give my credit card company, Google, Facebook, etc, with the knowledge they use that information to sell me crap. Why should the Constitution protect information third parties collect about me from their own observations? There might be good reasons to institute those protections, but we don't have a well-defined idea right now where the lines should be drawn. [1] There is an interesting documentary I saw once about how hallways are a pretty modern concept that arose contemporaneously with ideas of personal space. In houses from the 1600's you'd through bedrooms to get to other parts of the house--the expectation of private space was just a lot less.
    - newman314 15y ago
      Given your statement that privacy is a relatively modern concept, I find it interesting that the EU has comparatively stronger data protection laws. Those countries in general are way older and have older laws than the US. So if they can have strong data protection and privacy why should the US not have an equivalent? Giving up protection in the name of commercial interest is not a good solution or compromise.
hristov 15y ago
Technically, federal laws are not supposed to define the constitution. But often use and custom helps define constitutional protections, and these laws themselves define use and custom. Thus, for the present case, if the supreme court wants to look whether the fourth amendment applies online or for cloud services or the like, it will see what is happening in the real world and decide whether people really have an expectation of privacy in their data that is stored in the cloud. If becomes an open and accepted practice for any online service to give up any information to the government just for the asking, and without a warrant or an explanation, then you can hardly expect the Supreme Court to declare that the fourth amendment applies to any data stored with any online provider. So yes what we do now will definitely help define what the constitutional interpretation will be down the road. If we do not demand privacy, nobody is going to give it to us.

by panarky 15y ago

Xuzz 15y ago

Extreme hyperbole, as with much of TechDirt: http://news.ycombinator.com/item?id=3896572 http://news.ycombinator.com/item?id=3896572

rayiner 15y ago

Hyperbole. The 4th amendment never applied online (except in 1 Circuit with respect to e-mail).

newman314 15y ago
Why shouldn't it apply? That's what I have a hard time coming to terms with.
- rayiner 15y ago
  The 4th amendment encompasses: "The right of the people to be secure in their persons, houses, papers, and effects..." The literal text applies to your house and your person. You can make certain analogies from there, but even paper mail is a bit of a stretch (it was found to be protected because the Constitution creates the postal service). For example, one analogy might be: if I go everyday to the local news stand, the 4th amendment doesn't prevent the government from asking the news guy what magazines I look at without a warrant. So why should the government need a warrant to ask Google what things I search for on their service? I'm not saying that its the right analogy, but rather that people who say "oh the 4th amendment obviously covers information online" are starting from the result they want and working backwards. The problem is two-fold. First, there is no general right to privacy in the Constitution. Privacy is a pretty modern concept. People in the 1700's had very little privacy even in the physical sense.[1] What the 4th amendment protects is a narrower right: the sanctity of your home and personal effects and freedom from physical government harassment. Second, we don't have a well-defined idea of privacy even today. Why should the Constitution protect information I freely give my credit card company, Google, Facebook, etc, with the knowledge they use that information to sell me crap. Why should the Constitution protect information third parties collect about me from their own observations? There might be good reasons to institute those protections, but we don't have a well-defined idea right now where the lines should be drawn. [1] There is an interesting documentary I saw once about how hallways are a pretty modern concept that arose contemporaneously with ideas of personal space. In houses from the 1600's you'd through bedrooms to get to other parts of the house--the expectation of private space was just a lot less.
  - newman314 15y ago
    Given your statement that privacy is a relatively modern concept, I find it interesting that the EU has comparatively stronger data protection laws. Those countries in general are way older and have older laws than the US. So if they can have strong data protection and privacy why should the US not have an equivalent? Giving up protection in the name of commercial interest is not a good solution or compromise.

hristov 15y ago

Technically, federal laws are not supposed to define the constitution. But often use and custom helps define constitutional protections, and these laws themselves define use and custom. Thus, for the present case, if the supreme court wants to look whether the fourth amendment applies online or for cloud services or the like, it will see what is happening in the real world and decide whether people really have an expectation of privacy in their data that is stored in the cloud. If becomes an open and accepted practice for any online service to give up any information to the government just for the asking, and without a warrant or an explanation, then you can hardly expect the Supreme Court to declare that the fourth amendment applies to any data stored with any online provider. So yes what we do now will definitely help define what the constitutional interpretation will be down the road. If we do not demand privacy, nobody is going to give it to us.