5 ms·

Someone trots this horse out of the barn every time privacy issues come up. I don't give a fuck what SCOTUS said in 1979. They could have gotten it wrong. Thei

by gergles 13y ago

Someone trots this horse out of the barn every time privacy issues come up. I don't give a fuck what SCOTUS said in 1979. They could have gotten it wrong. Their interpretation could disagree with a plain reading of the Constitution, or they could have based their decision on inaccurate or incomplete data. Even if neither of those things are true, times have changed; issues at hand are wildly different than would ever have been conceivable in 1979. Going "SHUT UP, SCOTUS DECIDED THIS ALREADY" does nothing for the discussion, and it comes out every single time there's an ECPA or 4th Amendment thread.

dmourati 13y ago
Whoa! I responded to one point in the Rackspace response I thought was a bit off-base, specifically that their general counsel thinks the fourth amendment applies to them ... "Based on our interpretation of the Fourth Amendment ". It does not. You may not give a * about what the SCOTUS decided in 1979 but the SCOTUS does, it is called legal precedent. Times may have changed, but Smith v Maryland is still controlling law. Please try to be more civil.
- einhverfr 13y ago
  But it is still controlling law in the area of pen registers applied to single individuals, right? Knotts raises some uncertainty as to whether dragnet surveillance should be under the same rules, and at least 5 justices in Jones v. United States clearly articulated that it was different for long-term, widespread surveillance of this sort. So I am questioning as to whether Smith controls the Verizon order as it is. I am not sure a simple "yes" is possible.
tomasien 13y ago
Ok to be fair: that's how judicial rulings work, based on precedence. There may be (and I believe to be) far MORE precedence saying the opposite, but don't dismiss precedence's power.
- einhverfr 13y ago
  But.... Precedence can be handled a few ways: 1. They can be narrowed. "Gathering data from all customers regarding where and where they called from and who they called is fundamentally different under the 4th Amendment than what was decided under Smith." 2. They can be expanded, "Cell site location information is no different than what a pen register collects under the Constitution." 3. They can be overruled by the Supreme Court ("We hold we were wrong when we decided Smith v. Maryland.") This is the last choice for obvious practical reasons, and it involves more scrutiny. I don't think this will cause the third party doctrine to be reconsidered as it was decided in the past (in the context of narrow investigations). I think it is far more likely that courts (from circuit courts to the Supreme Court) will merely hold that it is Constitutionally different to do this to everyone without individualized suspicion than to do it to a specific individual already under investigation, just as it would be Constitutionally different to issue a search warrant for all apartments in a high-rise apartment building than it is to issue a search warrant on an individual's home. I don't think California Bankers Association will be overruled either and if they feel compelled to differentiate, they may say that rules do not require routine disclosure of all financial records, only the few big ones.
  - dmourati 13y ago
    Thanks for your comments. I appreciate the tone and research you have added. I actually am a lawyer, though a bit rusty on con law, having spent the past 10 years working in tech after a stint as a federal criminal defense attorney where the fourth amendment was one of my main weapons. With that out of the way, the best discussion of this topic and all the nuances that I've found is a "debate" between two law professors on the initial issue I raised: the third party doctrine. http://www.abajournal.com/magazine/article/the_data_question_should_the_third-party_records_doctrine_be_revisited/ http://www.abajournal.com/magazine/article/the_data_question... Like you, they argue what they think the law should be. In contrast, I'm stating simply what it is. I stand by my original assertion that Rackspace is not bound by the fourth amendment. This may be a technical point but an important one. Shaky though Smith v. Maryland may be, it remains the law of the land. Users have no "reasonable expectation of privacy" in data they store on Rackspace servers. Again, thanks for your comments.

by gergles 13y ago

dmourati 13y ago

Whoa! I responded to one point in the Rackspace response I thought was a bit off-base, specifically that their general counsel thinks the fourth amendment applies to them ... "Based on our interpretation of the Fourth Amendment ". It does not. You may not give a * about what the SCOTUS decided in 1979 but the SCOTUS does, it is called legal precedent. Times may have changed, but Smith v Maryland is still controlling law. Please try to be more civil.

einhverfr 13y ago
But it is still controlling law in the area of pen registers applied to single individuals, right? Knotts raises some uncertainty as to whether dragnet surveillance should be under the same rules, and at least 5 justices in Jones v. United States clearly articulated that it was different for long-term, widespread surveillance of this sort. So I am questioning as to whether Smith controls the Verizon order as it is. I am not sure a simple "yes" is possible.

tomasien 13y ago

Ok to be fair: that's how judicial rulings work, based on precedence. There may be (and I believe to be) far MORE precedence saying the opposite, but don't dismiss precedence's power.

einhverfr 13y ago
But.... Precedence can be handled a few ways: 1. They can be narrowed. "Gathering data from all customers regarding where and where they called from and who they called is fundamentally different under the 4th Amendment than what was decided under Smith." 2. They can be expanded, "Cell site location information is no different than what a pen register collects under the Constitution." 3. They can be overruled by the Supreme Court ("We hold we were wrong when we decided Smith v. Maryland.") This is the last choice for obvious practical reasons, and it involves more scrutiny. I don't think this will cause the third party doctrine to be reconsidered as it was decided in the past (in the context of narrow investigations). I think it is far more likely that courts (from circuit courts to the Supreme Court) will merely hold that it is Constitutionally different to do this to everyone without individualized suspicion than to do it to a specific individual already under investigation, just as it would be Constitutionally different to issue a search warrant for all apartments in a high-rise apartment building than it is to issue a search warrant on an individual's home. I don't think California Bankers Association will be overruled either and if they feel compelled to differentiate, they may say that rules do not require routine disclosure of all financial records, only the few big ones.
- dmourati 13y ago
  Thanks for your comments. I appreciate the tone and research you have added. I actually am a lawyer, though a bit rusty on con law, having spent the past 10 years working in tech after a stint as a federal criminal defense attorney where the fourth amendment was one of my main weapons. With that out of the way, the best discussion of this topic and all the nuances that I've found is a "debate" between two law professors on the initial issue I raised: the third party doctrine. http://www.abajournal.com/magazine/article/the_data_question_should_the_third-party_records_doctrine_be_revisited/ http://www.abajournal.com/magazine/article/the_data_question... Like you, they argue what they think the law should be. In contrast, I'm stating simply what it is. I stand by my original assertion that Rackspace is not bound by the fourth amendment. This may be a technical point but an important one. Shaky though Smith v. Maryland may be, it remains the law of the land. Users have no "reasonable expectation of privacy" in data they store on Rackspace servers. Again, thanks for your comments.