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The most insidious thing about this is that the government is probably precluded from collecting the kind of information about us that companies like Google and

The most insidious thing about this is that the government is probably precluded from collecting the kind of information about us that companies like Google and Facebook routinely gather. But as long as someone else has already done the work, the government can just demand the information.

Bosence 13y ago
I have never thought about it that way before.
magicalist 13y ago
To be fair, that's literally the point of a search warrant (/subpoena/"demand letter"). It's a bit like saying that the phone company has already done all the work identifying who you call. Well, yes, that's what you use them for. I assume your point is more that we use these services for more than any one service in the past. The real issue in this case, however, is that the FBI can request the data and no one will ever know that they did. That can only lead to abuse. How many of those 192,499 requests were actually used to fight terrorism? Well, we can't find out...
- axus 13y ago
  National Security Letters are warrant-less. A search by the government is [should be] only legal if it meets the conditions of the Fourth Amendment.
  - pyre 13y ago
    To be fair the NSL is the same thing as a warrant minus the judicial oversight (and possible paper trail). A NSL isn't diametrically different than a warrant.
    - magicalist 13y ago
      That's not correct. You can only request "non-content" data with a NSL, e.g. IP addresses, times of access, headers, etc. You need a warrant if you want actual content of communications, etc. (that's legally, of course. Many companies will roll over for even an informal request if they don't know better or to play ball (see: the telecom industry))
    - yardie 13y ago
      > A NSL isn't diametrically different than a warrant. The whole judicial oversight is the main and most important difference. Justice is supposed to be a balance and in these case the other side is loading the scale.
      - pyre 13y ago
        A NSL is a government order to produce something, so is a warrant. The difference is that a warrant has oversight as a check against abuse, and a NSL has removed all oversight (no judge, can't talk about it, etc). | The whole judicial oversight is the main and | most important difference Not necessarily. If Google (or whomever) could publish all of the NSLs that they get, it would have the possibility to cause public backlash that spurns Congress into action. Let's not forget that if we use the 'secret court' (e.g. FISA) to approve these NSLs, there's a 99.9% chance of them being approved. The FISA court rarely rejects what is put to it (which makes it sort of telling that the government doesn't even want to deal with the formality of the FISA court). | Justice is supposed to be a balance and in | these case the other side is loading the scale. You are trying to say that because you don't like National Security Letters, but you do agree with warrants that they have to contain no similarities. I disagree with NSLs, but talking about NSLs like warrants without judicial oversight doesn't require some addendum of, "OMG! NSLs ARE NOT WARRANTS! WAKE UP SHEEPLE!"
        declan 13y ago
        Well, yes. Both are legal requests, if you want to think of it that way. But types of requests can be differentiated. We can draw a distinction, for instance, between a charity requesting that you voluntarily donate $$$ and an armed man on the sidewalk pulling a gun and requesting $$$. :)
    - X-Istence 13y ago
      The fact that there is no judicial oversight, and thus almost no paper trail, is the real problem. They may not be completely different; they are different enough to be a cause for concern.
  - rayiner 13y ago
    Not all searches under the 4th amendment require a warrant. The structure of the 4th amendment is a little bit non-obvious (see: http://lawlibrary.unm.edu/nmlr/10/1/03_stelzner_fourth.pdf‎ http://lawlibrary.unm.edu/nmlr/10/1/03_stelzner_fourth.pdf‎). The text reads: "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 Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The ", and" between "violated" and "no Warrants" complicates the interpretation.[1] At common law, there was a well-understood universe of things that required warrants. Thus, the comma can be read as creating two separate requirements: 1) All searches must be reasonable; and 2) All warrants (to the extent that a search requires a warrant) must be supported by probable cause. This reading admits the possibility of searches that are reasonable but don't require warrants. And this is a common sense category (e.g. very few people would say that police should have to go get a warrant to search a robber caught at the crime scene for weapons). Contemporary battles tend to be over what kinds of searches require warrants. This isn't just a battle over grammar, however. It's a question of: "what did we agree on the scope of the government's powers being?" As a general rule, the law doesn't constraint the government's ability to subpoena information from a third party without a warrant. E.g. if you're being prosecuted for fraud, the government doesn't need a warrant to subpoena your business partners requesting all documents they have from their dealings with you. The purpose of the 4th amendment is to protect you from the indignity of the search, not to protect the information itself. Under that logic, you can make a reasonable case that nothing should stop the government from subpoenaing any information Google or AT&T have about you. The real problem here is the secret nature of the NSL's, not the 4th amendment issues, IMHO. One of the things that justifies the far-reaching subpoena powers of common law courts is the fact that they are distributed, transparent entities--nearly everything is a matter of public record. [1] In plain speech, I might say: "I eat pizza, and I eat cake." The ", and" combines two independent thoughts without any necessary relationship between them, other than the fact that I like both. It could be the case that I never eat pizza and cake in the same meal.
    - sageikosa 13y ago
      Many of the warranted search battles when dealing with online information center around who owns the data. "Persons, houses, papers, and effects" might have made a lot of sense when indirect communication only could travel via letters, and knowledge only stored in books and memoirs. If a jewelry store puts up cameras to track people in the store, the jewelry store owns the footage and information. If Google tracks user queries, Google owns the tracking data (even if its about me). If I buy a storage locker, a warrant is needed to open it up without my consent. If Google "sells" me data storage either directly or indirectly, I assume I own the data stored within and it should take a warrant to access it, regardless of how easy it might be for the superintendent of the service to access it.
- deleted 13y ago
  [deleted]
tomkarlo 13y ago
Does anyone know if they're actually precluded from this, or if it's just a matter of it being far more convenient to NSL a company that already has the data? As least in the latter scenario, they're not simply collecting data on everyone all the time.

Bosence 13y ago

I have never thought about it that way before.

magicalist 13y ago

To be fair, that's literally the point of a search warrant (/subpoena/"demand letter"). It's a bit like saying that the phone company has already done all the work identifying who you call. Well, yes, that's what you use them for. I assume your point is more that we use these services for more than any one service in the past. The real issue in this case, however, is that the FBI can request the data and no one will ever know that they did. That can only lead to abuse. How many of those 192,499 requests were actually used to fight terrorism? Well, we can't find out...

axus 13y ago
National Security Letters are warrant-less. A search by the government is [should be] only legal if it meets the conditions of the Fourth Amendment.
- pyre 13y ago
  To be fair the NSL is the same thing as a warrant minus the judicial oversight (and possible paper trail). A NSL isn't diametrically different than a warrant.
  - magicalist 13y ago
    That's not correct. You can only request "non-content" data with a NSL, e.g. IP addresses, times of access, headers, etc. You need a warrant if you want actual content of communications, etc. (that's legally, of course. Many companies will roll over for even an informal request if they don't know better or to play ball (see: the telecom industry))
  - yardie 13y ago
    > A NSL isn't diametrically different than a warrant. The whole judicial oversight is the main and most important difference. Justice is supposed to be a balance and in these case the other side is loading the scale.
    - pyre 13y ago
      A NSL is a government order to produce something, so is a warrant. The difference is that a warrant has oversight as a check against abuse, and a NSL has removed all oversight (no judge, can't talk about it, etc). | The whole judicial oversight is the main and | most important difference Not necessarily. If Google (or whomever) could publish all of the NSLs that they get, it would have the possibility to cause public backlash that spurns Congress into action. Let's not forget that if we use the 'secret court' (e.g. FISA) to approve these NSLs, there's a 99.9% chance of them being approved. The FISA court rarely rejects what is put to it (which makes it sort of telling that the government doesn't even want to deal with the formality of the FISA court). | Justice is supposed to be a balance and in | these case the other side is loading the scale. You are trying to say that because you don't like National Security Letters, but you do agree with warrants that they have to contain no similarities. I disagree with NSLs, but talking about NSLs like warrants without judicial oversight doesn't require some addendum of, "OMG! NSLs ARE NOT WARRANTS! WAKE UP SHEEPLE!"
      - declan 13y ago
        Well, yes. Both are legal requests, if you want to think of it that way. But types of requests can be differentiated. We can draw a distinction, for instance, between a charity requesting that you voluntarily donate $$$ and an armed man on the sidewalk pulling a gun and requesting $$$. :)
  - X-Istence 13y ago
    The fact that there is no judicial oversight, and thus almost no paper trail, is the real problem. They may not be completely different; they are different enough to be a cause for concern.
- rayiner 13y ago
  Not all searches under the 4th amendment require a warrant. The structure of the 4th amendment is a little bit non-obvious (see: http://lawlibrary.unm.edu/nmlr/10/1/03_stelzner_fourth.pdf‎ http://lawlibrary.unm.edu/nmlr/10/1/03_stelzner_fourth.pdf‎). The text reads: "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 Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The ", and" between "violated" and "no Warrants" complicates the interpretation.[1] At common law, there was a well-understood universe of things that required warrants. Thus, the comma can be read as creating two separate requirements: 1) All searches must be reasonable; and 2) All warrants (to the extent that a search requires a warrant) must be supported by probable cause. This reading admits the possibility of searches that are reasonable but don't require warrants. And this is a common sense category (e.g. very few people would say that police should have to go get a warrant to search a robber caught at the crime scene for weapons). Contemporary battles tend to be over what kinds of searches require warrants. This isn't just a battle over grammar, however. It's a question of: "what did we agree on the scope of the government's powers being?" As a general rule, the law doesn't constraint the government's ability to subpoena information from a third party without a warrant. E.g. if you're being prosecuted for fraud, the government doesn't need a warrant to subpoena your business partners requesting all documents they have from their dealings with you. The purpose of the 4th amendment is to protect you from the indignity of the search, not to protect the information itself. Under that logic, you can make a reasonable case that nothing should stop the government from subpoenaing any information Google or AT&T have about you. The real problem here is the secret nature of the NSL's, not the 4th amendment issues, IMHO. One of the things that justifies the far-reaching subpoena powers of common law courts is the fact that they are distributed, transparent entities--nearly everything is a matter of public record. [1] In plain speech, I might say: "I eat pizza, and I eat cake." The ", and" combines two independent thoughts without any necessary relationship between them, other than the fact that I like both. It could be the case that I never eat pizza and cake in the same meal.
  - sageikosa 13y ago
    Many of the warranted search battles when dealing with online information center around who owns the data. "Persons, houses, papers, and effects" might have made a lot of sense when indirect communication only could travel via letters, and knowledge only stored in books and memoirs. If a jewelry store puts up cameras to track people in the store, the jewelry store owns the footage and information. If Google tracks user queries, Google owns the tracking data (even if its about me). If I buy a storage locker, a warrant is needed to open it up without my consent. If Google "sells" me data storage either directly or indirectly, I assume I own the data stored within and it should take a warrant to access it, regardless of how easy it might be for the superintendent of the service to access it.
deleted 13y ago
[deleted]

tomkarlo 13y ago

Does anyone know if they're actually precluded from this, or if it's just a matter of it being far more convenient to NSL a company that already has the data? As least in the latter scenario, they're not simply collecting data on everyone all the time.