4 ms·

We need a constitutional amendment that says "we really mean it" with respect to the 4th and 9th amendments, explicitly including personal digital data and cri

We need a constitutional amendment that says "we really mean it" with respect to the 4th and 9th amendments, explicitly including personal digital data and criminalizing general surveillance. With fangs.

tptacek 5mo ago
The border search exception was designed by the framers.
- themafia 5mo ago
  The collection act originally was intended to apply to merchandise and merchant ports. The concept was judicially expanded upon in 1925 but wasn't fully ensconced into federal law until 1952.
  - tptacek 5mo ago
    At actual border crossings, the practice at the time of the framers was that warrantless searches/inspections at border crossings were normal and permissible.
    - simoncion 5mo ago
      At actual border crossings, the practice at the time of the framers was not to carry along all of your private correspondence, business records, reading lists, and so forth. Related to that, given the complaints that started the war, I'd strongly expect that in Washington's day it was not permitted to perform unwarranted searches of one's sealed correspondence going through the US Post. [0] As the ability to perform surveillance on members of the public expands, laws and regulations must be reconsidered with these new capabilities in mind if just outcomes are to be maintained. Laws, regulations, and punishments that were just and reasonable when one expected to learn about and prosecute one offender in -say- a million are likely unjust and unreasonable when one expects to learn about and prosecute every single offender. [2] [0] See also Section 16 on numbered page 236 of [1] [1] <https://govtrackus.s3.amazonaws.com/legislink/pdf/stat/1/STATUTE-1-Pg232.pdf https://govtrackus.s3.amazonaws.com/legislink/pdf/stat/1/STA...> [2] Yes, there are offenses -such as murder- for which this doesn't hold. I'd expect that these are the minority of offenses.
      - tptacek 5mo ago
        I'm not saying that iPhones and computers don't challenge the premises of the border search exception, only that those searches don't by themselves represent some decay of the Fourth Amendment.
        simoncion 5mo ago
        AFAICT, neither was OP. They said: We need a constitutional amendment that says "we really mean it" with respect to the 4th and 9th amendments, explicitly including personal digital data and criminalizing general surveillance. With fangs. You replied: The border search exception was designed by the framers. and I wrote the clarification that I did because -given the context- it seemed pretty clear to me that you'd missed OP's point. I'd go further and argue that law enforcement and other government agents should be absolutely prohibited from accessing ordinary people's data [0] stored with or collected/computed by a third party without first getting a warrant or other such authorization from The Court. It has been ages since most of that sort of data could reasonably be considered «incidental business records», and how the law treats it absolutely needs to be updated to match the reality of how regular people's day-to-day interactions with third parties have changed. [0] ...or metadata...
        tptacek 5mo ago
        It's good to want things!
        simoncion 5mo ago
        I've been getting the impression that all that metaphorical rocket fuel you and your colleagues have been metaphorically sipping is burning you out. Don't be hesitant to take a sabbatical or extended vacation to perform a solid personal health check. As I'm sure you know, chronic exhaustion and overwork is insidious and impairs your ability to recognize that you're affected by it. Even those of us who very definitely know better than to get caught by it sometimes get caught by it... and getting sufficiently out from under it to even recognize that you've been substantially impaired by it (let alone fully recover from it) takes more time than one might expect.
Spooky23 5mo ago
We really need a concept of tenancy in a digital context. Your personal papers are perfectly safe and subject the fourth amendment protections in your rented apartment. But most digital materials are considered to have been shared with a third-party if you store them on Google Drive. My feeling about this stuff personally is that the biggest issue is that stuff that happens in electronic devices is different in a modern sense than what anyone intended in the past. If you could figure out a way to make my personal property as it exists on a foam or another device, the same as the personal property that’s in my desk at home or the trunk of my car then technology would be able to solve a lot of these problems. I think the custom thing is a more nuance conversation. I don’t understand the theory of it enough, but intuitively it seems ridiculous that a CBP officer has the ability to legally go through 30 years of my pictures in my Apple album because I happen to be crossing a border.

tptacek 5mo ago

The border search exception was designed by the framers.

themafia 5mo ago
The collection act originally was intended to apply to merchandise and merchant ports. The concept was judicially expanded upon in 1925 but wasn't fully ensconced into federal law until 1952.
- tptacek 5mo ago
  At actual border crossings, the practice at the time of the framers was that warrantless searches/inspections at border crossings were normal and permissible.
  - simoncion 5mo ago
    At actual border crossings, the practice at the time of the framers was not to carry along all of your private correspondence, business records, reading lists, and so forth. Related to that, given the complaints that started the war, I'd strongly expect that in Washington's day it was not permitted to perform unwarranted searches of one's sealed correspondence going through the US Post. [0] As the ability to perform surveillance on members of the public expands, laws and regulations must be reconsidered with these new capabilities in mind if just outcomes are to be maintained. Laws, regulations, and punishments that were just and reasonable when one expected to learn about and prosecute one offender in -say- a million are likely unjust and unreasonable when one expects to learn about and prosecute every single offender. [2] [0] See also Section 16 on numbered page 236 of [1] [1] <https://govtrackus.s3.amazonaws.com/legislink/pdf/stat/1/STATUTE-1-Pg232.pdf https://govtrackus.s3.amazonaws.com/legislink/pdf/stat/1/STA...> [2] Yes, there are offenses -such as murder- for which this doesn't hold. I'd expect that these are the minority of offenses.
    - tptacek 5mo ago
      I'm not saying that iPhones and computers don't challenge the premises of the border search exception, only that those searches don't by themselves represent some decay of the Fourth Amendment.
      - simoncion 5mo ago
        AFAICT, neither was OP. They said: We need a constitutional amendment that says "we really mean it" with respect to the 4th and 9th amendments, explicitly including personal digital data and criminalizing general surveillance. With fangs. You replied: The border search exception was designed by the framers. and I wrote the clarification that I did because -given the context- it seemed pretty clear to me that you'd missed OP's point. I'd go further and argue that law enforcement and other government agents should be absolutely prohibited from accessing ordinary people's data [0] stored with or collected/computed by a third party without first getting a warrant or other such authorization from The Court. It has been ages since most of that sort of data could reasonably be considered «incidental business records», and how the law treats it absolutely needs to be updated to match the reality of how regular people's day-to-day interactions with third parties have changed. [0] ...or metadata...
        tptacek 5mo ago
        It's good to want things!
        simoncion 5mo ago
        I've been getting the impression that all that metaphorical rocket fuel you and your colleagues have been metaphorically sipping is burning you out. Don't be hesitant to take a sabbatical or extended vacation to perform a solid personal health check. As I'm sure you know, chronic exhaustion and overwork is insidious and impairs your ability to recognize that you're affected by it. Even those of us who very definitely know better than to get caught by it sometimes get caught by it... and getting sufficiently out from under it to even recognize that you've been substantially impaired by it (let alone fully recover from it) takes more time than one might expect.

Spooky23 5mo ago

We really need a concept of tenancy in a digital context. Your personal papers are perfectly safe and subject the fourth amendment protections in your rented apartment. But most digital materials are considered to have been shared with a third-party if you store them on Google Drive. My feeling about this stuff personally is that the biggest issue is that stuff that happens in electronic devices is different in a modern sense than what anyone intended in the past. If you could figure out a way to make my personal property as it exists on a foam or another device, the same as the personal property that’s in my desk at home or the trunk of my car then technology would be able to solve a lot of these problems. I think the custom thing is a more nuance conversation. I don’t understand the theory of it enough, but intuitively it seems ridiculous that a CBP officer has the ability to legally go through 30 years of my pictures in my Apple album because I happen to be crossing a border.