5 ms·

> What constitutional issues do you believe are present? 4th Amendment (Search and Seizure)

kopecs 1y ago
Do you think the 4th amendment enjoins courts from requiring the preservation of records as part of discovery? The court is just requiring OpenAI to maintain records it already maintains and segregate them. Even if one thinks that _is_ a government seizure, which it isn't---See Burdeau v. McDowell, 256 U.S. 465 (1921); cf. Walter v. United States, 447 U.S. 649, 656 (1980) (discussing the "state agency" requirement)---no search or seizure has even occurred. There's no reasonable expectation of privacy in the records you're sending to OpenAI (you know OpenAI has them!!; See, e.g., Smith v. Maryland, 442 U.S. 735 (1979)) and you don't have any possessory interest in the records. See, e.g., United States v. Jacobsen, 466 U.S. 109 (1984).
- alwa 1y ago
  This would help explain why entities with a “zero data retention” agreement are “not affected,” then, per OpenAI’s statement at the time? Because records aren’t created for those queries in the first place, so there’s nothing to retain?
  - kopecs 1y ago
    AIUI Because if you have a zero data retention agreement you are necessarily not in the class of records at issue (since enterprise customers records are not affected, again AIUI per platinffs' original motion which might be because they don't think they're relevant for market harm or something). So I think that this is more so an artefact of the parameters than an outcome of some mechanism of law.
- paulddraper 1y ago
  > There's no reasonable expectation of privacy in the records There is a reasonable expectation that deleted and anonymous chats would not be indefinitely retained. > The court is just requiring OpenAI to maintain records it already maintains and segregate them. Incorrect. The court is requiring OpenAI to maintain records it would have not maintained otherwise. That is the crux of this entire thing.
  - tptacek 1y ago
    Litigation holds do not violate the 4th amendment.
  - kelnos 1y ago
    > The court is requiring OpenAI to maintain records it would have not maintained otherwise. Not quite. The court is requiring OpenAPI to maintain records longer than it would otherwise retain them. It's not making them maintain records that they never would have created in the first place (like if a customer of theirs has a zero-retention agreement in place). Legal holds are a thing; you're not going to successfully argue against them on 4A grounds. This might seem like an overly broad legal hold, though, but I'm not sure if there are any rules that prevent that sort of thing.
    - paulddraper 1y ago
      > This might seem like an overly broad legal hold Exactly
deleted 1y ago
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DannyBee 1y ago
How? the government is not involved at all in this dispute, neither state or federal.
- mindslight 1y ago
  So the parties are just like duking it out in a parking lot or something? If the government is not involved, then why does OpenAI even bother listening to the judge?
  - freejazz 1y ago
    This only demonstrates that you do not understand the difference between the executive and judicial branches. It does not demonstrate a good point.
    - mindslight 1y ago
      How so? The comment I was responding to made no such distinction - it merely claimed "the government is not involved". In the US, "government" is generally taken to be anybody acting under the banner of nation/state authority (contrast with say the UK). So the government is most certainly involved here - adjudicating the case and issuing this retention order. (for example, your own comment: the executive and judicial branches [of government])
      - freejazz 1y ago
        > How so? The comment I was responding to made no such distinction Should I mention that water is wet every time I mention water? The executive is the executive, the judicial is the judicial. It's inherent in the discussion and pretending otherwise only for the benefit of furthering obtuse points that go nowhere serves the benefit of no one. So you either didn't know, and do now, or you're just cratering the discussion.
        mindslight 1y ago
        I made an obtuse reply to an obtuse wrong assertion. You then baselessly claimed I didn't know about different branches of government. That second bit is what tends to crater conversations. The distinction of the judiciary is most certainly relevant to the actual legal analysis here - the judiciary often reserves sweeping authoritarian powers for themselves, even when they do act to restrain the legislative/executive. So without even really analyzing the details, I am pretty sure that the law as written supports this action. But the comment I was responding to wasn't making a larger more nuanced argument - rather it said that the government was not involved, defining away the actions of the judiciary as somehow not being governmental action, regardless of them being done with the authority of government. The overall analysis is that if people are up in arms about this, it just reinforces the need for some actual privacy laws in this country - both to protect from corporations themselves abusing our data, and in this case to prevent the government from creating overly broad judicial orders that may only target specific companies but end up running roughshod over many individuals' rights. (and just to be clear to avoid going off into the terminology weeds again: the definition of rights I'm using is the one of imagined natural rights, not merely what has been codified into law)
freejazz 1y ago
It's a civil case and the gov't is not involved so...

Do you think the 4th amendment enjoins courts from requiring the preservation of records as part of discovery? The court is just requiring OpenAI to maintain records it already maintains and segregate them. Even if one thinks that _is_ a government seizure, which it isn't---See Burdeau v. McDowell, 256 U.S. 465 (1921); cf. Walter v. United States, 447 U.S. 649, 656 (1980) (discussing the "state agency" requirement)---no search or seizure has even occurred. There's no reasonable expectation of privacy in the records you're sending to OpenAI (you know OpenAI has them!!; See, e.g., Smith v. Maryland, 442 U.S. 735 (1979)) and you don't have any possessory interest in the records. See, e.g., United States v. Jacobsen, 466 U.S. 109 (1984).

alwa 1y ago
This would help explain why entities with a “zero data retention” agreement are “not affected,” then, per OpenAI’s statement at the time? Because records aren’t created for those queries in the first place, so there’s nothing to retain?
- kopecs 1y ago
  AIUI Because if you have a zero data retention agreement you are necessarily not in the class of records at issue (since enterprise customers records are not affected, again AIUI per platinffs' original motion which might be because they don't think they're relevant for market harm or something). So I think that this is more so an artefact of the parameters than an outcome of some mechanism of law.
paulddraper 1y ago
> There's no reasonable expectation of privacy in the records There is a reasonable expectation that deleted and anonymous chats would not be indefinitely retained. > The court is just requiring OpenAI to maintain records it already maintains and segregate them. Incorrect. The court is requiring OpenAI to maintain records it would have not maintained otherwise. That is the crux of this entire thing.
- tptacek 1y ago
  Litigation holds do not violate the 4th amendment.
- kelnos 1y ago
  > The court is requiring OpenAI to maintain records it would have not maintained otherwise. Not quite. The court is requiring OpenAPI to maintain records longer than it would otherwise retain them. It's not making them maintain records that they never would have created in the first place (like if a customer of theirs has a zero-retention agreement in place). Legal holds are a thing; you're not going to successfully argue against them on 4A grounds. This might seem like an overly broad legal hold, though, but I'm not sure if there are any rules that prevent that sort of thing.
  - paulddraper 1y ago
    > This might seem like an overly broad legal hold Exactly

deleted 1y ago

[deleted]

DannyBee 1y ago

How? the government is not involved at all in this dispute, neither state or federal.

mindslight 1y ago
So the parties are just like duking it out in a parking lot or something? If the government is not involved, then why does OpenAI even bother listening to the judge?
- freejazz 1y ago
  This only demonstrates that you do not understand the difference between the executive and judicial branches. It does not demonstrate a good point.
  - mindslight 1y ago
    How so? The comment I was responding to made no such distinction - it merely claimed "the government is not involved". In the US, "government" is generally taken to be anybody acting under the banner of nation/state authority (contrast with say the UK). So the government is most certainly involved here - adjudicating the case and issuing this retention order. (for example, your own comment: the executive and judicial branches [of government])
    - freejazz 1y ago
      > How so? The comment I was responding to made no such distinction Should I mention that water is wet every time I mention water? The executive is the executive, the judicial is the judicial. It's inherent in the discussion and pretending otherwise only for the benefit of furthering obtuse points that go nowhere serves the benefit of no one. So you either didn't know, and do now, or you're just cratering the discussion.
      - mindslight 1y ago
        I made an obtuse reply to an obtuse wrong assertion. You then baselessly claimed I didn't know about different branches of government. That second bit is what tends to crater conversations. The distinction of the judiciary is most certainly relevant to the actual legal analysis here - the judiciary often reserves sweeping authoritarian powers for themselves, even when they do act to restrain the legislative/executive. So without even really analyzing the details, I am pretty sure that the law as written supports this action. But the comment I was responding to wasn't making a larger more nuanced argument - rather it said that the government was not involved, defining away the actions of the judiciary as somehow not being governmental action, regardless of them being done with the authority of government. The overall analysis is that if people are up in arms about this, it just reinforces the need for some actual privacy laws in this country - both to protect from corporations themselves abusing our data, and in this case to prevent the government from creating overly broad judicial orders that may only target specific companies but end up running roughshod over many individuals' rights. (and just to be clear to avoid going off into the terminology weeds again: the definition of rights I'm using is the one of imagined natural rights, not merely what has been codified into law)

freejazz 1y ago

It's a civil case and the gov't is not involved so...