4 ms·

Purchasing from data brokers in order to avoid getting a search warrant is just unambiguously against the Fourth Amendment, right? It’s amazing to me that this

by rafram 1y ago

Purchasing from data brokers in order to avoid getting a search warrant is just unambiguously against the Fourth Amendment, right? It’s amazing to me that this hasn’t been stopped by the courts.

like_any_other 1y ago
The problem is a search warrant grants additional powers to a government agent, that a private citizen doesn't have. Whereas buying from data brokers is something anyone can do - it would be odd if a government agent had less authority than a random citizen. On the other hand, it could be argued that buying this data amounts to hiring the airline to spy on you, no different than if they had hired a private investigator to follow you. But if everything is tracked and stored indefinitely, a mere warrant isn't much of a shield [1]. Nor does this solve the problem of corporate surveillance, which I see as just as big a threat. [1] https://web.archive.org/web/20140718122350/https://www.popehat.com/2014/07/15/warrants-bulwark-of-liberty-or-paper-shield/ https://web.archive.org/web/20140718122350/https://www.popeh...
fluidcruft 1y ago
I don't think it is unambiguously against the fourth amendment. And in any case domestic flights are interstate commerce so with approximately similar authority you could claim it's unambiguously legal if authorized by Congress (which is very likely since IIRC all this business records stuff and any authority needed to spin activies off to contractors plowed through Congress after 9/11 and was implemented by Bush).
- like_any_other 1y ago
  Being interstate commerce would only bring it under the jurisdiction of the federal government, it would not free the government from 4th amendment limits.
  - fluidcruft 1y ago
    The 4th Amendment doesn't have anything to do with information that is freely sold by its owner. The 4th Amendment at best would apply when the government wanted to force it to be handed over against the company's will. Nobody is forcing these companies to do this. They just happen to have stuff the government wants to buy and are more than happy to sell it for a profit. And Congress doesn't forbid it.
jinpa_zangpo 1y ago
The courts have a third party doctrine. If you willingly give your data to a third party (the airlines) it's not a violation for the government to also use it.
- sorcerer-mar 1y ago
  You presumably know this but just to clarify for other readers: it's if you willingly give your data to a third party (the airlines) and the third party willingly gives it to the government, then it's not a violation for the government to use it. Note there's an exception for cell tower data because courts ruled that cellphones are absolutely necessary for people to live their lives today. They collect so much data that applying Third Party Doctrine to that data is tantamount to a 24/7 100% carte blanche surveillance system across the entire country, so SCOTUS carved this one out.
- rafram 1y ago
  "Willingly" needs an update in the age of hidden and unreadable ToS agreements and data brokers. I willingly board a plane, which the airline takes to mean that I willingly agree to their contract of carriage, so I willingly hand over my data to a data broker that passes it to the government. But was I really agreeing to any of that?
- potato3732842 1y ago
  Which is an insane doctrine in 2025 although I can see how it made more sense historically. They gotta get a search warrant for a storage locker or bank box. They ought to have to get the same warrant for your gmail or fitness app records or whatever. "Papers and effects" and all that.

by rafram 1y ago

Purchasing from data brokers in order to avoid getting a search warrant is just unambiguously against the Fourth Amendment, right? It’s amazing to me that this hasn’t been stopped by the courts.

like_any_other 1y ago

The problem is a search warrant grants additional powers to a government agent, that a private citizen doesn't have. Whereas buying from data brokers is something anyone can do - it would be odd if a government agent had less authority than a random citizen. On the other hand, it could be argued that buying this data amounts to hiring the airline to spy on you, no different than if they had hired a private investigator to follow you. But if everything is tracked and stored indefinitely, a mere warrant isn't much of a shield [1]. Nor does this solve the problem of corporate surveillance, which I see as just as big a threat. [1] https://web.archive.org/web/20140718122350/https://www.popehat.com/2014/07/15/warrants-bulwark-of-liberty-or-paper-shield/ https://web.archive.org/web/20140718122350/https://www.popeh...

fluidcruft 1y ago

I don't think it is unambiguously against the fourth amendment. And in any case domestic flights are interstate commerce so with approximately similar authority you could claim it's unambiguously legal if authorized by Congress (which is very likely since IIRC all this business records stuff and any authority needed to spin activies off to contractors plowed through Congress after 9/11 and was implemented by Bush).

like_any_other 1y ago
Being interstate commerce would only bring it under the jurisdiction of the federal government, it would not free the government from 4th amendment limits.
- fluidcruft 1y ago
  The 4th Amendment doesn't have anything to do with information that is freely sold by its owner. The 4th Amendment at best would apply when the government wanted to force it to be handed over against the company's will. Nobody is forcing these companies to do this. They just happen to have stuff the government wants to buy and are more than happy to sell it for a profit. And Congress doesn't forbid it.

jinpa_zangpo 1y ago

The courts have a third party doctrine. If you willingly give your data to a third party (the airlines) it's not a violation for the government to also use it.

sorcerer-mar 1y ago
You presumably know this but just to clarify for other readers: it's if you willingly give your data to a third party (the airlines) and the third party willingly gives it to the government, then it's not a violation for the government to use it. Note there's an exception for cell tower data because courts ruled that cellphones are absolutely necessary for people to live their lives today. They collect so much data that applying Third Party Doctrine to that data is tantamount to a 24/7 100% carte blanche surveillance system across the entire country, so SCOTUS carved this one out.
rafram 1y ago
"Willingly" needs an update in the age of hidden and unreadable ToS agreements and data brokers. I willingly board a plane, which the airline takes to mean that I willingly agree to their contract of carriage, so I willingly hand over my data to a data broker that passes it to the government. But was I really agreeing to any of that?
potato3732842 1y ago
Which is an insane doctrine in 2025 although I can see how it made more sense historically. They gotta get a search warrant for a storage locker or bank box. They ought to have to get the same warrant for your gmail or fitness app records or whatever. "Papers and effects" and all that.