3 ms·

That's only if you accept the current "third party doctrine" interpretation of the limits of the fourth amendment. There is nothing in the amendment itself to l

That's only if you accept the current "third party doctrine" interpretation of the limits of the fourth amendment. There is nothing in the amendment itself to limit its protections in the way that they have been, and, in fact, these limits have not been enforced uniformly. For instance, even though you make (or made) telephone calls in the clear over a third party network, the government cannot tap your phone calls without a warrant (and, in fact, protections were even expanded to tapping of public pay phones to target specific people in Katz v. United States). The third party doctrine must be dropped by the courts or protections for things like email need to be made explicit by congress. However, the current interpretations favored by courts are not inherent to the fourth amendment. Timothy B Lee does a great job blogging about this stuff on Ars Technica and elsewhere. Here's a good starting point if anyone wants one: http://www.techdirt.com/articles/20080530/2014171272.shtml http://www.techdirt.com/articles/20080530/2014171272.shtml

rayiner 14y ago
In the legal sense, the third party doctrine is as inherent to the 4th amendment as anything can be--it's the Supreme Court's binding interpretation of the contours of the phrase "reasonable expectation of privacy." In the practical sense, I strain to see how someone can have a reasonable expectation of privacy in say their e-mail when Google, Yahoo, Microsoft, etc, data-mine those communications in order to show targeted advertisements...
- maxerickson 14y ago
  I certainly don't ever expect a data mining system to gossip. Treating networked automatic systems like personal notebooks really isn't so terribly strained, there is no reason to expect a person is ever reviewing the data passed to them.
- magicalist 14y ago
  > In the legal sense, the third party doctrine is as inherent to the 4th amendment as anything can be--it's the Supreme Court's binding interpretation of the contours of the phrase "reasonable expectation of privacy." Not really, because it has only been applied (and kept from application) piecemeal. Warrants required for wiretaps is one good example of where the Supreme Court has said the third party doctrine does not hold. The 6th circuit has actually ruled that email (even if older than six months) is protected by the 4th amendment. That's why many are hoping the supreme court will take up the case, or congress will amend the Stored Communications Act to clear up the inconsistencies. 6th Circuit: Given the fundamental similarities between email and traditional forms of communication [like postal mail and telephone calls], it would defy common sense to afford emails lesser Fourth Amendment protection.... It follows that email requires strong protection under the Fourth Amendment; otherwise the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve.... [T]he police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call--unless they get a warrant, that is. It only stands to reason that, if government agents compel an ISP to surrender the contents of a subscriber's emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement. https://www.eff.org/deeplinks/2010/12/breaking-news-eff-victory-appeals-court-holds https://www.eff.org/deeplinks/2010/12/breaking-news-eff-vict... > In the practical sense, I strain to see how someone can have a reasonable expectation of privacy in say their e-mail when Google, Yahoo, Microsoft, etc, data-mine those communications in order to show targeted advertisements... We're talking the government here, not companies. You can agree to all sorts of things that the government can't compel you to do. I'm not sure how this is relevant.
- greggman 14y ago
  So by that argument are you okay with them using speech recognition to voice calls and applying the same standard so phone calls? Basically the only thing that makes phone calls special is the tech to easily store and search old conversations didn't exist. Now a days the phone company (or Skype etc..) could keep a digital record of all conversations if they wanted to. Which way do you think it should it go? Should email be added to "reasonable expectation of privacy" or should voice calls remove that expectation?
- dobro 14y ago
  >In the legal sense, the third party doctrine is as inherent to the 4th amendment as anything can be--it's the Supreme Court's binding interpretation of the contours of the phrase "reasonable expectation of privacy." Or, to put it better: >the Supreme Court's binding interpretation of the contours of the phrase "reasonable expectation of privacy", in which the Supreme Court bended over to big goverment and took the most BS route of interpretation it could.
- tolmasky 14y ago
  Regarding your practical sense argument: I don't see how its strange at all to have an expectation of privacy even if they data mine it -- seems like just a term in a contract to me. For example, if you hire me to protect your valuable manuscripts in my more-secure safe, but grant me in this agreement the exclusive privilege to read these documents with an NDA attached -- would it then obviously follow that I deserve no privacy for those documents AT ALL because I handed them to a third party? Of course not. Many people know and find acceptable that Amazon uses data about your purchases to build suggestions for others -- those same people would consider it completely different to go around telling others what you purchased (government or otherwise). I'm sure even you agree that the expectation that GMail not publish all your emails in a blog post is reasonable -- so the belief in needing a warrant to see them isn't that much of a stretch. My point is not that this is the current legal interpretation -- I understand its not. I'm simply pointing out that it is perfectly logically consistent from the user's viewpoint to expect this. Furthermore, it seems like if I were to go out of my way in our contract to specify the privacy of your email the government would still think its fine to read it.
  - rayiner 14y ago
    Right, but that's a contractual expectation between you and say Google. It's not a general expectation that something will remain private. E.g. I expect my shrink not to tell people stuff, but I don't have a 4th amendment claim of he tells the police that I said I'd kill someone.

rayiner 14y ago

In the legal sense, the third party doctrine is as inherent to the 4th amendment as anything can be--it's the Supreme Court's binding interpretation of the contours of the phrase "reasonable expectation of privacy." In the practical sense, I strain to see how someone can have a reasonable expectation of privacy in say their e-mail when Google, Yahoo, Microsoft, etc, data-mine those communications in order to show targeted advertisements...

maxerickson 14y ago
I certainly don't ever expect a data mining system to gossip. Treating networked automatic systems like personal notebooks really isn't so terribly strained, there is no reason to expect a person is ever reviewing the data passed to them.
magicalist 14y ago
> In the legal sense, the third party doctrine is as inherent to the 4th amendment as anything can be--it's the Supreme Court's binding interpretation of the contours of the phrase "reasonable expectation of privacy." Not really, because it has only been applied (and kept from application) piecemeal. Warrants required for wiretaps is one good example of where the Supreme Court has said the third party doctrine does not hold. The 6th circuit has actually ruled that email (even if older than six months) is protected by the 4th amendment. That's why many are hoping the supreme court will take up the case, or congress will amend the Stored Communications Act to clear up the inconsistencies. 6th Circuit: Given the fundamental similarities between email and traditional forms of communication [like postal mail and telephone calls], it would defy common sense to afford emails lesser Fourth Amendment protection.... It follows that email requires strong protection under the Fourth Amendment; otherwise the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve.... [T]he police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call--unless they get a warrant, that is. It only stands to reason that, if government agents compel an ISP to surrender the contents of a subscriber's emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement. https://www.eff.org/deeplinks/2010/12/breaking-news-eff-victory-appeals-court-holds https://www.eff.org/deeplinks/2010/12/breaking-news-eff-vict... > In the practical sense, I strain to see how someone can have a reasonable expectation of privacy in say their e-mail when Google, Yahoo, Microsoft, etc, data-mine those communications in order to show targeted advertisements... We're talking the government here, not companies. You can agree to all sorts of things that the government can't compel you to do. I'm not sure how this is relevant.
greggman 14y ago
So by that argument are you okay with them using speech recognition to voice calls and applying the same standard so phone calls? Basically the only thing that makes phone calls special is the tech to easily store and search old conversations didn't exist. Now a days the phone company (or Skype etc..) could keep a digital record of all conversations if they wanted to. Which way do you think it should it go? Should email be added to "reasonable expectation of privacy" or should voice calls remove that expectation?
dobro 14y ago
>In the legal sense, the third party doctrine is as inherent to the 4th amendment as anything can be--it's the Supreme Court's binding interpretation of the contours of the phrase "reasonable expectation of privacy." Or, to put it better: >the Supreme Court's binding interpretation of the contours of the phrase "reasonable expectation of privacy", in which the Supreme Court bended over to big goverment and took the most BS route of interpretation it could.
tolmasky 14y ago
Regarding your practical sense argument: I don't see how its strange at all to have an expectation of privacy even if they data mine it -- seems like just a term in a contract to me. For example, if you hire me to protect your valuable manuscripts in my more-secure safe, but grant me in this agreement the exclusive privilege to read these documents with an NDA attached -- would it then obviously follow that I deserve no privacy for those documents AT ALL because I handed them to a third party? Of course not. Many people know and find acceptable that Amazon uses data about your purchases to build suggestions for others -- those same people would consider it completely different to go around telling others what you purchased (government or otherwise). I'm sure even you agree that the expectation that GMail not publish all your emails in a blog post is reasonable -- so the belief in needing a warrant to see them isn't that much of a stretch. My point is not that this is the current legal interpretation -- I understand its not. I'm simply pointing out that it is perfectly logically consistent from the user's viewpoint to expect this. Furthermore, it seems like if I were to go out of my way in our contract to specify the privacy of your email the government would still think its fine to read it.
- rayiner 14y ago
  Right, but that's a contractual expectation between you and say Google. It's not a general expectation that something will remain private. E.g. I expect my shrink not to tell people stuff, but I don't have a 4th amendment claim of he tells the police that I said I'd kill someone.