4 ms·

The funny thing is, when it comes to freedom of speech, the courts made the opposite decision with the State Actors doctrine. If the government wants to censor

The funny thing is, when it comes to freedom of speech, the courts made the opposite decision with the State Actors doctrine. If the government wants to censor you, they can't reach through a private institution to do it. But the Third Party Doctrine says they can reach through a private institution to search and seize your property. This is an arbitrary distinction chosen purely by judicial fiat. There was no democratic movement to strengthen 1A and weaken 4A/5A in this manner. Ergo, we shouldn't necessarily have to get Congress involved just to fix this weird inconsistency in caselaw. The courts have an understandable aversion to "legislating from the bench", but if you've already done so, I think it's fine to at least fix obvious mistakes.

voxic11 3y ago
I don't think the courts or the companies which hold your personal data consider you to have any property right to that data (beyond the intellectual rights you may have via any copyrights, even if you count those much personal data like your location history or your DNA isn't copyrightable). Imo when the government receives a copy of your personal data from a third party they aren't "taking your property" any more than I would be if I took a photograph of your house. How do you imagine property rights for personal data to work? Even in places like the EU with stronger rights/protections around personal data they don't try to fit those rights/protections into the existing framework of property rights because they are so different.
- caseysoftware 3y ago
  We don't have to imagine, we can read their TOS. We continue to "own" the data, but we've given them a worldwide irrevocable unlimited license to do what they want, limited only by local law.. hence why I put "own" in quotation marks.
  - voxic11 3y ago
    Well that is in regard to any copyrighted material you may give them. But for uncopyrightable things like data from a heart rate sensor, or your shopping history on amazon, you can only ever own the physical objects the data is manifested in, not the data itself. And any company will definitely tell you that you have zero property rights over the actual storage devices in the datacenters where your data happens to reside.
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idontpost 3y ago
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bpt3 3y ago
There's a major (and important) distinction between the two scenarios. The State Actors doctrine says that the government can't hire someone to do something on their behalf that they're not allowed to do. Under the Third Party Doctrine, they aren't searching and seizing your property in this case, as your data is no longer your property since you gave it to that third party already. If the government was paying Neustar (or whomever) to go acquire this data on their behalf, it would be an issue under current law. But buying something that was handed over willingly* is a different issue. *the article makes a valid point that many people are unaware they have agreed to hand this data over to a service provider, which is something that should be addressed IMO. You might not agree with it, but it's not an "obvious mistake" and it's not a "weird inconsistency" in caselaw.
- staplers 3y ago
  Under the Third Party Doctrine, they aren't searching and seizing your property in this case, as your data is no longer your property since you gave it to that third party already. If you have a child in public education, you are forced to use third party tools to communicate, acquire class photos, enroll in sports, etc. Nothing with data collection is "voluntary". To exist in our society there are so many "private institutions" that essentially wield governmental power. It will absolutely be our undoing as a country that we cannot see the forest from the trees.
  - bpt3 3y ago
    > If you have a child in public education, you are forced to use third party tools to communicate, acquire class photos, enroll in sports, etc. No, you aren't (at least in my area), but even if you are that's not the government's problem. > Nothing with data collection is "voluntary". To exist in our society there are so many "private institutions" that essentially wield governmental power. It is "voluntary". The quotes are there for a reason because it can be highly inconvenient not to "volunteer", but it is possible (at a cost in most cases). > It will absolutely be our undoing as a country that we cannot see the forest from the trees. Third party data access will not be our undoing. For one, it's not that serious of an issue, and we can ultimately change the law if enough people feel strongly enough about it.

voxic11 3y ago

I don't think the courts or the companies which hold your personal data consider you to have any property right to that data (beyond the intellectual rights you may have via any copyrights, even if you count those much personal data like your location history or your DNA isn't copyrightable). Imo when the government receives a copy of your personal data from a third party they aren't "taking your property" any more than I would be if I took a photograph of your house. How do you imagine property rights for personal data to work? Even in places like the EU with stronger rights/protections around personal data they don't try to fit those rights/protections into the existing framework of property rights because they are so different.

caseysoftware 3y ago
We don't have to imagine, we can read their TOS. We continue to "own" the data, but we've given them a worldwide irrevocable unlimited license to do what they want, limited only by local law.. hence why I put "own" in quotation marks.
- voxic11 3y ago
  Well that is in regard to any copyrighted material you may give them. But for uncopyrightable things like data from a heart rate sensor, or your shopping history on amazon, you can only ever own the physical objects the data is manifested in, not the data itself. And any company will definitely tell you that you have zero property rights over the actual storage devices in the datacenters where your data happens to reside.

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idontpost 3y ago

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bpt3 3y ago

There's a major (and important) distinction between the two scenarios. The State Actors doctrine says that the government can't hire someone to do something on their behalf that they're not allowed to do. Under the Third Party Doctrine, they aren't searching and seizing your property in this case, as your data is no longer your property since you gave it to that third party already. If the government was paying Neustar (or whomever) to go acquire this data on their behalf, it would be an issue under current law. But buying something that was handed over willingly* is a different issue. *the article makes a valid point that many people are unaware they have agreed to hand this data over to a service provider, which is something that should be addressed IMO. You might not agree with it, but it's not an "obvious mistake" and it's not a "weird inconsistency" in caselaw.

staplers 3y ago
Under the Third Party Doctrine, they aren't searching and seizing your property in this case, as your data is no longer your property since you gave it to that third party already. If you have a child in public education, you are forced to use third party tools to communicate, acquire class photos, enroll in sports, etc. Nothing with data collection is "voluntary". To exist in our society there are so many "private institutions" that essentially wield governmental power. It will absolutely be our undoing as a country that we cannot see the forest from the trees.
- bpt3 3y ago
  > If you have a child in public education, you are forced to use third party tools to communicate, acquire class photos, enroll in sports, etc. No, you aren't (at least in my area), but even if you are that's not the government's problem. > Nothing with data collection is "voluntary". To exist in our society there are so many "private institutions" that essentially wield governmental power. It is "voluntary". The quotes are there for a reason because it can be highly inconvenient not to "volunteer", but it is possible (at a cost in most cases). > It will absolutely be our undoing as a country that we cannot see the forest from the trees. Third party data access will not be our undoing. For one, it's not that serious of an issue, and we can ultimately change the law if enough people feel strongly enough about it.