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>> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no

• _delirium 14y ago
  The main issue here is that it's legislation covering cases not covered by the 4th amendment, i.e. where there is no Constitutional violation in the search, but which the legislature could add additional statutory requirements to. And the main reason that's the case is that you only have 4th-amendment rights in your person and property, but you have no property rights in your Facebook account, which is wholly owned by Facebook, and which you use for free only as a guest. So the only party that could object to a search of Facebook is Facebook itself (they could fight subpoenas, attempting to quash them as unreasonable impositions... not unreasonable impositions on you, but on Facebook). I don't think that's a good state of affairs, but I can see how it logically makes sense. On HN we're often reminded that people have no right as users to any particular service from Google or Facebook, and the reason is that they don't own anything about the service or the data on it. Facebook could sell your data to advertisers, they could mail all your posts to the FBI without a warrant, whatever they want. So similarly there is no 4th-amendment right that you have relating to a search of Facebook, because it's not a search of your person or property, but of theirs. In the Founding generation this wouldn't have been an issue because it was not common to for a person to store significant amounts of their personal papers in a form where they had no ownership over them (even when you stored with a 3rd party, like in a bank safety deposit box, there was typically a contract specifying that you had certain ownership rights). I do think there should be a fix to it, which will require implying some kind of rights that Facebook users have against government searches of Facebook targeted at that user (despite the user having no ownership in Facebook). But one wouldn't want that to go too far, because I can also see the property-rights argument: if I really do want to voluntarily mail the data on my server to the FBI, and I didn't sign a contract with the users saying I wouldn't, why should the users be able to stop me from doing so? You'd have to abrogate property rights with some kind of right-to-information-privacy that supersedes the fact that it's my server and I own its contents. Overall it seems like a situation that the Constitution's framers didn't imagine.
  • nathan_long 14y ago
    I see what you're saying, but there are at least two separate issues here. >> you have no property rights in your Facebook account, which is wholly owned by Facebook By this logic, do I also have no right to expect privacy when I mail a paper letter through the post office? After all, its sorting facilities are wholly owned by the government. I honestly don't know what the framers would have said about that. If I shouldn't expect privacy there, the argument is done. If I should expect privacy from the post office, there's a second issue: >> and which you use for free only as a guest By this logic, I should expect privacy from my cell carrier, because I pay to use their service, therefore my account and the data passing through it might be argued to be "mine". >> in a bank safety deposit box, there was typically a contract specifying that you had certain ownership rights... [snip] ... some kind of right-to-information-privacy that supersedes the fact that it's my server and I own its contents. Both of these parts of your comment suggest that I should be legally able to operate a service and specify in the user agreement that I won't give their data up for search without a warrant; that they have some ownership rights over their data. Sadly, I think the government would assert otherwise. The only loophole I've heard used so far is to operate a service which, through encryption, actually can't access users' data. And for all I know, that will be declared obstruction of justice.
    • _delirium 14y ago
      On the letter analogy, things owned by the government are treated differently from things owned by a 3rd party in the private sector. The government generally is more restricted in its actions. And in the case of the USPS, there are further statutory restrictions beyond those required by the Constitution that are written into law, specifically about protecting the privacy of mail in transit. The same is true with phone calls: wiretapping statutes place certain requirements on when a wiretap can be authorized, beyond the minimums the Constitution would require. One of those (which the AT&T wiretapping scandal hit) is to actually make it criminal for a phone company to volunteer information to the federal government without a warrant, which basically closes down the 3rd-party-consent end-run around search warrants, since it explicitly makes it criminal for them to consent. I do think it's a good idea to consider extending some of these to email, given its pervasive role that's largely replacing what physical mail and phones used to carry. But that requires admitting that email to some extent needs to be treated less like a purely private-sector business, and more like a utility. Your last point is an interesting one, though. If a provider specifically includes in their service policies a promise not to give up the user's data, then it seems like the provider would have a good claim when they attempt to quash subpoenas, even if the user themselves doesn't have any particular rights in the matter.