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There is a certain logic to what they're saying, after all. You shared this information with Facebook or Twitter or Google. It's no longer in your private pos

There is a certain logic to what they're saying, after all. You shared this information with Facebook or Twitter or Google. It's no longer in your private possession, because of that sharing, so if those companies feel like giving your messages to the DOJ, it's not really a "violation" of your 4th amendment rights, because you gave those up when you gave your "private" communications to those companies. I'm not saying anything about how good or bad that is for American society, but I can absolutely see an interpretation of the 4th amendment where information you share with a third party doesn't get protected as if it were private. There may be other laws that protect your emails and tweets and whatnot, but the 4th amendment specifically may not be the best place to look for that protection.

pyre 14y ago
The postal service, UPS, DHL, FedEx, the phone company, etc. These are all 3rd party services that people use to send private things. People have an expectation of privacy when they send a message to someone via (e.g.) Facebook Chat. Some might argue that it's an unreasonable expectation of privacy if you understand the technology behind it, but I would argue that the majority of the population doesn't understand the way the technology works (which would imply that the majority of the population expects that the communications will remain private).
- sp332 14y ago
  If you agree to a privacy policy that says "we will give your data to the DOJ any time they ask for it" you don't have a reasonable expectation of privacy either.
  - pyre 14y ago
    If you sign an employee agreement that says, "we own all of IP you produce past, present and future," then it's obviously enforceable, right?
    - sp332 14y ago
      That's actually much more enforceable than a drive-by EULA.
      - rhizome 14y ago
        Are you sure about that?
        sp332 14y ago
        Yeah, because you would actually read & physically sign an employment agreement, and that agreement actually has some bearing on how you relate to your job. OTOH an EULA is not read by most people, and their enforceability has been challenged in court. https://en.wikipedia.org/wiki/Software_license_agreement#Enforceability_of_EULAs_in_the_United_States https://en.wikipedia.org/wiki/Software_license_agreement#Enf...
        rhizome 14y ago
        You can't sign your rights away, and "we own all of IP you produce past, present and future," is a forsaking of rights that would naturally be exercisable by the person signing the contract. Employment agreements are also subject to contract law concepts such as consideration[1], which would come into play when someone stops and asks "what's in it for me?" A single job as described at the beginning of the relationship through the employment agreement is probably not going to be seen as valuable enough for someone to have legitimately signed away his future productivity. 1. http://en.wikipedia.org/wiki/Consideration http://en.wikipedia.org/wiki/Consideration
        sp332 14y ago
        Your interpretation of "consideration" is, according to the article you linked, the minority position. https://en.wikipedia.org/wiki/Consideration#Monetary_value_of_consideration https://en.wikipedia.org/wiki/Consideration#Monetary_value_o... I'm not sure what you mean by "you can't sign your rights away". IP is of course transferable.
- MichaelApproved 14y ago
  The phone company is the best example because with a couple of alligator clips they could easy listen in on phone conversations. It's understood that listening in is a rare occurrence but we are ok with it happening. Same goes for FB, Google and other providers. They have the ability to read your mail and occasionally do just like the phone company. Bonus example: voice mail. It's just like email since its a message sitting on the service providers computer. Can the Feds just listen to those messages?
  - srumple 14y ago
    The problem here is not the level of access they get to our information. The problem is how they are allowed to use that access. The 4th Amendment doesn't really prevent the Feds from snooping on anything they want to, it just prevents them from acting on any of that information.
    - pyre 14y ago
      Huh? If the FBI busts into someone's house without a warrant there are going to be more repercussions than just "we can't use this information in court."
  - Zimahl 14y ago
    I guess what people don't have a problem with there is that at least someone is physically listening in on a phone line - it requires manpower to do and thus is very deliberate. It's when we are being data mined by the government there's a problem. I think we all don't mind being data mined for advertising (within reason) but when we are being watched to be 'kept in line' that's where there's a problem. At that point it's more like 'Minority Report' where you are being scrutinized before you even do anything.
    - err_badprocrast 14y ago
      I don't like being data mined, full stop. Advertisers don't get a free pass; I would much rather pay for any service than have companies I don't even know the names of compile mile-long paper trails of my online (and possibly offline) activities.
- mpyne 14y ago
  The postal service is the only one of those mail carrier which you have listed that actually have legal standing for that privacy expectation though. Regarding phones, those also have specific laws attempting to protect wireless (cellular) communications from eavesdropping (with the exception of legal wiretaps, which cellular providers are required to be able to support). Likewise for pagers, those have specific laws making it illegal to intercept the communications sent to pagers. For normal phones, a specific law had to be passed to require warrants for interception of communication (the "Wiretap Statute" from 1968, later extended by the Electronic Communications Privacy Act of 1986). So the point to all of this is that those privacy "rights" that you talk about are not 4th Amendment rights at all, they are protections granted by specific legal action on the part of Congress. Had that legal action not been taken then you'd be right back in this same "interesting 4th Amendment question" that we're talking about for this. The bottom line is that if you're willing to give info to a 3rd party unencrypted you need to assume the government can be given access to the same information unless there are specific laws forbidding it.
  - axus 14y ago
    The anti-wiretapping laws are needed to prevent non-government entities from violating our security. The Fourth Amendment already clarifies that government must not violate the security of ourselves and our communications (papers), without a warrant naming the person being searched, and what is being sought.
    - mpyne 14y ago
      Yes, but before those anti-wiretapping laws the phone company could theoretically do ad-hoc wiretapping of their own and voluntarily divulge that to the government. The only limit would have been that the phone company couldn't have wiretapped at the direct behest of the government since the Supreme Court had already ruled that the 4th Amendment applied [to the government] where the person had a reasonable expectation of privacy. The statute fixed that privacy issue and then put requirements on when wiretaps could be used by the government. Before this law and the Supreme Court decision the government was very... lax regarding warrants for wiretaps. http://www.it.ojp.gov/default.aspx?area=privacy&page=1284 http://www.it.ojp.gov/default.aspx?area=privacy&page=128...
- rayiner 14y ago
  There is no protection for UPS, DHL, FedEx, etc. The only one for which there is protection is the Postal Service, and that is because it is an organ of the government. Also: the government could always ask your friend at the other end about what you said, not just Facebook. The intention of the founders re: the 4th amendment was not to protect communications between people, it was to protect people from personal searches. Read the text: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Persons, houses, papers, and effects? What do all those things have in common? They are personal to you. You'd feel violated if someone else entered your house or rifled through your effects. That same reasoning doesn't apply to something like a Facebook message that any of a number of people at Facebook could read. Maybe you assume that they wouldn't do that, but they certainly can. Maybe we need a law to keep the government from getting Facebook messages without a warrant. But that's a separate thing from the Constitutional issue. Personally, I don't even think we need such a law. If you're okay with Facebook or Google looking at your communications, you should be okay with the government doing so.
  - pyre 14y ago
    I didn't raise a Constitutional issue. I'm pretty sure that "reasonable expectation of privacy" is found no where in the Constitution. | If you're okay with Facebook or Google looking at | your communications, you should be okay with the | government doing so. - This treads awfully close to 'if you have nothing to hide, then you have nothing to fear.' - Government employees wield much more power than Facebook employees. - If it was common knowledge that all Google/Facebook employees had unfettered access to all communications going through their systems, then people would treat the system differently. As it stands, employees should only be looking at specific communications to deal with work functions (investigate complaints from users, look at a message that caused a back-end system to blow up, etc).
    - rayiner 14y ago
      > This treads awfully close to 'if you have nothing to hide, then you have nothing to fear.' But you're not hiding anything. You're transmitting it in clear text through Google/Facebook's services. You're not worried about the right to hide your information, you're worried about the right to hide it against the government specifically. That's the key distinction. I do have things to hide--I don't share those thing with either Google or the government, and those are the things I want protected. If I choose to share something with Google, I'm okay with the government having access to it too. > Government employees wield much more power than Facebook employees. In my mind, the government has a lot more power to screw me over, but private industry has a lot more incentive. I'm much more worried about credit ratings agencies, insurance companies, potential employers, etc, having access to my information than I am about the NSA looking at my information. > As it stands, employees should only be looking at specific communications to deal with work functions That's the same for government employees. Maybe the difference between us is that you implicitly trust the employees of Facebook not to do stuff like this, and don't trust government employees, while I feel the opposite way.
tych0 14y ago
Yes, in (US) legal circles this is known as the "Third Party doctrine". Justice Sotomayor has said in at least one opinion that if we want to re-vamp privacy laws, the third party doctrine is what needs to be reversed, and that she may be willing to do so.
tshile 14y ago
If you want to follow that line of logic then you still have an issue with Facebook, Twitter, Google, et al being forced (via national security letters, and through other means) to turn over data and gag orders issued to prevent them from disclosing it.
declan 14y ago
This point has been debated for quite a while: entire conferences have been held on this topic! Perhaps 20 years ago you would have found plenty of people who agree with you. But the emerging legal consensus, in academia, in Congress, and in the courts, is contrary to your view. Excerpt from the 6th Circuit's Warshak opinion: "Since the advent of e-mail, the telephone call and the letter have waned in importance, and an explosion of Internet-based communication has taken place. People are now able to send sensitive and intimate information, instantaneously, to friends, family, and colleagues half a world away... By obtaining access to someone's e-mail, government agents gain the ability to peer deeply into his activities."
glesica 14y ago
You share your telephone conversations with the phone company, so why did they need permission to set up a wiretap in the past? You shared your personal and business possessions with your housekeeper, janitor, plumber and other maintenance staff, so why do they need a search warrant for your home or office? It's not a logical argument, it's a ludicrous argument that sounds logical because the Internet has only existed for most people for 15 years or so and social norms are still being worked out.
- mpyne 14y ago
  The government needs a search warrant, not your housekeeper. If your housekeeper then tells the government of your "crimes" that's whistleblowing, not government invasion of your privacy. As for the telephone conversations, read this thread a bit more... the government didn't need permission to wiretap until a specific law was passed in 1934 that required it.
  - pyre 14y ago
    This is more akin to a safety deposit box. The bank doesn't necessarily know what's in there. It's not the same as compelling testimony from a housekeeper. Sure, Facebook/Google have more access than a bank has to the safety deposit box, but the likelihood that anyone at Google or Facebook has actual knowledge of the information the government is looking for is slim to none. Maybe a better analogy would be a warehouse. Just because things are stored in the warehouse, and employees have access, doesn't mean that the employees have rifled through them.
  - glesica 14y ago
    I'm really not that interested in what the law says. The law often says horrible, stupid things. I was criticizing the OP's assertion that the policy "made sense". It does not make sense unless you also believe that it is acceptable for the government to snoop into your life through other means, using situations in which you have trusted a third party against you.
    - mpyne 14y ago
np422 14y ago
I think we are missing the fundamental issue here. What do "we the people" want? Do we want the government to seek out and exploit every possible loophole it can find and to make up excuses to eavesdrop on us? Or do we want to make sure that gentlemen don't read each others letters? I would very much prefer the latter. State the law as "if you are a public servant, don't listen to the conversation of people - don't even think about or try to listen - unless you have a very specific reason to do otherwise and then only if you must". "They", the government, are the people having guns and the authority to lock you up. Once we get used to the idea that "they are listening" whenever they want ... we will start to self censor what we say and very shortly thereafter what we do and think. You don't want to be the one sticking out, you don't want to catch their attention. And that is when we have killed creativity, stopped future development of society and made the entrepreneurs walk in the line at the same pace as everyone else. The quest for privacy is not about protecting the fact that I like to watch videos of midgets dressed up in leather underwear or my protecting friend who is ordering weed online. It is about the future of our society.

pyre 14y ago

The postal service, UPS, DHL, FedEx, the phone company, etc. These are all 3rd party services that people use to send private things. People have an expectation of privacy when they send a message to someone via (e.g.) Facebook Chat. Some might argue that it's an unreasonable expectation of privacy if you understand the technology behind it, but I would argue that the majority of the population doesn't understand the way the technology works (which would imply that the majority of the population expects that the communications will remain private).

sp332 14y ago
If you agree to a privacy policy that says "we will give your data to the DOJ any time they ask for it" you don't have a reasonable expectation of privacy either.
- pyre 14y ago
  If you sign an employee agreement that says, "we own all of IP you produce past, present and future," then it's obviously enforceable, right?
  - sp332 14y ago
    That's actually much more enforceable than a drive-by EULA.
    - rhizome 14y ago
      Are you sure about that?
      - sp332 14y ago
        Yeah, because you would actually read & physically sign an employment agreement, and that agreement actually has some bearing on how you relate to your job. OTOH an EULA is not read by most people, and their enforceability has been challenged in court. https://en.wikipedia.org/wiki/Software_license_agreement#Enforceability_of_EULAs_in_the_United_States https://en.wikipedia.org/wiki/Software_license_agreement#Enf...
        rhizome 14y ago
        You can't sign your rights away, and "we own all of IP you produce past, present and future," is a forsaking of rights that would naturally be exercisable by the person signing the contract. Employment agreements are also subject to contract law concepts such as consideration[1], which would come into play when someone stops and asks "what's in it for me?" A single job as described at the beginning of the relationship through the employment agreement is probably not going to be seen as valuable enough for someone to have legitimately signed away his future productivity. 1. http://en.wikipedia.org/wiki/Consideration http://en.wikipedia.org/wiki/Consideration
        sp332 14y ago
        Your interpretation of "consideration" is, according to the article you linked, the minority position. https://en.wikipedia.org/wiki/Consideration#Monetary_value_of_consideration https://en.wikipedia.org/wiki/Consideration#Monetary_value_o... I'm not sure what you mean by "you can't sign your rights away". IP is of course transferable.
MichaelApproved 14y ago
The phone company is the best example because with a couple of alligator clips they could easy listen in on phone conversations. It's understood that listening in is a rare occurrence but we are ok with it happening. Same goes for FB, Google and other providers. They have the ability to read your mail and occasionally do just like the phone company. Bonus example: voice mail. It's just like email since its a message sitting on the service providers computer. Can the Feds just listen to those messages?
- srumple 14y ago
  The problem here is not the level of access they get to our information. The problem is how they are allowed to use that access. The 4th Amendment doesn't really prevent the Feds from snooping on anything they want to, it just prevents them from acting on any of that information.
  - pyre 14y ago
    Huh? If the FBI busts into someone's house without a warrant there are going to be more repercussions than just "we can't use this information in court."
- Zimahl 14y ago
  I guess what people don't have a problem with there is that at least someone is physically listening in on a phone line - it requires manpower to do and thus is very deliberate. It's when we are being data mined by the government there's a problem. I think we all don't mind being data mined for advertising (within reason) but when we are being watched to be 'kept in line' that's where there's a problem. At that point it's more like 'Minority Report' where you are being scrutinized before you even do anything.
  - err_badprocrast 14y ago
    I don't like being data mined, full stop. Advertisers don't get a free pass; I would much rather pay for any service than have companies I don't even know the names of compile mile-long paper trails of my online (and possibly offline) activities.
mpyne 14y ago
The postal service is the only one of those mail carrier which you have listed that actually have legal standing for that privacy expectation though. Regarding phones, those also have specific laws attempting to protect wireless (cellular) communications from eavesdropping (with the exception of legal wiretaps, which cellular providers are required to be able to support). Likewise for pagers, those have specific laws making it illegal to intercept the communications sent to pagers. For normal phones, a specific law had to be passed to require warrants for interception of communication (the "Wiretap Statute" from 1968, later extended by the Electronic Communications Privacy Act of 1986). So the point to all of this is that those privacy "rights" that you talk about are not 4th Amendment rights at all, they are protections granted by specific legal action on the part of Congress. Had that legal action not been taken then you'd be right back in this same "interesting 4th Amendment question" that we're talking about for this. The bottom line is that if you're willing to give info to a 3rd party unencrypted you need to assume the government can be given access to the same information unless there are specific laws forbidding it.
- axus 14y ago
  The anti-wiretapping laws are needed to prevent non-government entities from violating our security. The Fourth Amendment already clarifies that government must not violate the security of ourselves and our communications (papers), without a warrant naming the person being searched, and what is being sought.
  - mpyne 14y ago
    Yes, but before those anti-wiretapping laws the phone company could theoretically do ad-hoc wiretapping of their own and voluntarily divulge that to the government. The only limit would have been that the phone company couldn't have wiretapped at the direct behest of the government since the Supreme Court had already ruled that the 4th Amendment applied [to the government] where the person had a reasonable expectation of privacy. The statute fixed that privacy issue and then put requirements on when wiretaps could be used by the government. Before this law and the Supreme Court decision the government was very... lax regarding warrants for wiretaps. http://www.it.ojp.gov/default.aspx?area=privacy&page=1284 http://www.it.ojp.gov/default.aspx?area=privacy&page=128...
rayiner 14y ago
There is no protection for UPS, DHL, FedEx, etc. The only one for which there is protection is the Postal Service, and that is because it is an organ of the government. Also: the government could always ask your friend at the other end about what you said, not just Facebook. The intention of the founders re: the 4th amendment was not to protect communications between people, it was to protect people from personal searches. Read the text: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Persons, houses, papers, and effects? What do all those things have in common? They are personal to you. You'd feel violated if someone else entered your house or rifled through your effects. That same reasoning doesn't apply to something like a Facebook message that any of a number of people at Facebook could read. Maybe you assume that they wouldn't do that, but they certainly can. Maybe we need a law to keep the government from getting Facebook messages without a warrant. But that's a separate thing from the Constitutional issue. Personally, I don't even think we need such a law. If you're okay with Facebook or Google looking at your communications, you should be okay with the government doing so.
- pyre 14y ago
  I didn't raise a Constitutional issue. I'm pretty sure that "reasonable expectation of privacy" is found no where in the Constitution. | If you're okay with Facebook or Google looking at | your communications, you should be okay with the | government doing so. - This treads awfully close to 'if you have nothing to hide, then you have nothing to fear.' - Government employees wield much more power than Facebook employees. - If it was common knowledge that all Google/Facebook employees had unfettered access to all communications going through their systems, then people would treat the system differently. As it stands, employees should only be looking at specific communications to deal with work functions (investigate complaints from users, look at a message that caused a back-end system to blow up, etc).
  - rayiner 14y ago
    > This treads awfully close to 'if you have nothing to hide, then you have nothing to fear.' But you're not hiding anything. You're transmitting it in clear text through Google/Facebook's services. You're not worried about the right to hide your information, you're worried about the right to hide it against the government specifically. That's the key distinction. I do have things to hide--I don't share those thing with either Google or the government, and those are the things I want protected. If I choose to share something with Google, I'm okay with the government having access to it too. > Government employees wield much more power than Facebook employees. In my mind, the government has a lot more power to screw me over, but private industry has a lot more incentive. I'm much more worried about credit ratings agencies, insurance companies, potential employers, etc, having access to my information than I am about the NSA looking at my information. > As it stands, employees should only be looking at specific communications to deal with work functions That's the same for government employees. Maybe the difference between us is that you implicitly trust the employees of Facebook not to do stuff like this, and don't trust government employees, while I feel the opposite way.

tych0 14y ago

Yes, in (US) legal circles this is known as the "Third Party doctrine". Justice Sotomayor has said in at least one opinion that if we want to re-vamp privacy laws, the third party doctrine is what needs to be reversed, and that she may be willing to do so.

tshile 14y ago

If you want to follow that line of logic then you still have an issue with Facebook, Twitter, Google, et al being forced (via national security letters, and through other means) to turn over data and gag orders issued to prevent them from disclosing it.

declan 14y ago

This point has been debated for quite a while: entire conferences have been held on this topic! Perhaps 20 years ago you would have found plenty of people who agree with you. But the emerging legal consensus, in academia, in Congress, and in the courts, is contrary to your view. Excerpt from the 6th Circuit's Warshak opinion: "Since the advent of e-mail, the telephone call and the letter have waned in importance, and an explosion of Internet-based communication has taken place. People are now able to send sensitive and intimate information, instantaneously, to friends, family, and colleagues half a world away... By obtaining access to someone's e-mail, government agents gain the ability to peer deeply into his activities."

glesica 14y ago

You share your telephone conversations with the phone company, so why did they need permission to set up a wiretap in the past? You shared your personal and business possessions with your housekeeper, janitor, plumber and other maintenance staff, so why do they need a search warrant for your home or office? It's not a logical argument, it's a ludicrous argument that sounds logical because the Internet has only existed for most people for 15 years or so and social norms are still being worked out.

mpyne 14y ago
The government needs a search warrant, not your housekeeper. If your housekeeper then tells the government of your "crimes" that's whistleblowing, not government invasion of your privacy. As for the telephone conversations, read this thread a bit more... the government didn't need permission to wiretap until a specific law was passed in 1934 that required it.
- pyre 14y ago
  This is more akin to a safety deposit box. The bank doesn't necessarily know what's in there. It's not the same as compelling testimony from a housekeeper. Sure, Facebook/Google have more access than a bank has to the safety deposit box, but the likelihood that anyone at Google or Facebook has actual knowledge of the information the government is looking for is slim to none. Maybe a better analogy would be a warehouse. Just because things are stored in the warehouse, and employees have access, doesn't mean that the employees have rifled through them.
- glesica 14y ago
  I'm really not that interested in what the law says. The law often says horrible, stupid things. I was criticizing the OP's assertion that the policy "made sense". It does not make sense unless you also believe that it is acceptable for the government to snoop into your life through other means, using situations in which you have trusted a third party against you.
  - mpyne 14y ago

np422 14y ago

I think we are missing the fundamental issue here. What do "we the people" want? Do we want the government to seek out and exploit every possible loophole it can find and to make up excuses to eavesdrop on us? Or do we want to make sure that gentlemen don't read each others letters? I would very much prefer the latter. State the law as "if you are a public servant, don't listen to the conversation of people - don't even think about or try to listen - unless you have a very specific reason to do otherwise and then only if you must". "They", the government, are the people having guns and the authority to lock you up. Once we get used to the idea that "they are listening" whenever they want ... we will start to self censor what we say and very shortly thereafter what we do and think. You don't want to be the one sticking out, you don't want to catch their attention. And that is when we have killed creativity, stopped future development of society and made the entrepreneurs walk in the line at the same pace as everyone else. The quest for privacy is not about protecting the fact that I like to watch videos of midgets dressed up in leather underwear or my protecting friend who is ordering weed online. It is about the future of our society.