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> the programs were explicitly designed to stay within the bounds of the law My understanding of this basis is that the government contends that pure storage o

by lukifer 13y ago

> the programs were explicitly designed to stay within the bounds of the law My understanding of this basis is that the government contends that pure storage of data does not constitute a search (not that I accept this line of reasoning). However, in a legal system that takes intellectual property very seriously, in what sense does it not constitute a seizure?

DanBC 13y ago
For content data that's held temporarily it counts as caching, and there are probably exemptions in law for Government secret spy agencies. For meta-content that's held forever - I guess they say it's not private and thus they can keep it forever. The UK is going through some kerfuffle around meta-data to allow it to be gathered and kept. See, for example, the exemption in the UK version of the DMCA for people who are "studying cryptography" (http://www.legislation.gov.uk/ukpga/1988/48/section/296ZA http://www.legislation.gov.uk/ukpga/1988/48/section/296ZA) I should just link to UK RIPA (http://www.legislation.gov.uk/ukpga/2000/23/contents http://www.legislation.gov.uk/ukpga/2000/23/contents), especially this bit: (http://www.legislation.gov.uk/ukpga/2000/23/section/42 http://www.legislation.gov.uk/ukpga/2000/23/section/42) but actually all of it. RIPA is interesting. I genuinely don't care about GCHQ caching content for three days and keeping meta data for 30 days. That has no impact on my life. I do care about the abuses that other government departments (usually local government) has carried out using powers under RIPA. Some edits, but I forget to label them! Sorry.
rayiner 13y ago
There are two bases, both of which are pretty uncontroversial: 1) The 4th amendment doesn't extend to non-U.S. persons. The prevailing view of the Constitution is that its scope is territorial. You have to have some connection to the U.S. to have rights and obligations under the Constitution. That means either living here, even if you're not a citizen, or being a citizen, even if you're living abroad. A lot of the NSA's procedures are concerned with making sure that it's data collection is limited to that likely to be with "non-U.S. persons." 2) The third party doctrine: by handing information over to Google, etc, you're purposefully exposing the information and can no longer claim that it's private in the same way the contents of your desk drawer are private. It is already established that bank records and telephone numbers you've dialed are not protected by the 4th amendment for this reason (https://ssd.eff.org/your-computer/govt/privacy https://ssd.eff.org/your-computer/govt/privacy). I'm not sure the degree to which it has been established that the NSA is doing anything that requires treating pure data storage as not a search, but in any case why should the standard for what constitutes a search have any relation to copying under the copyright laws? The intent and purposes of the two regimes are totally different. Also, you have to be careful about whose data is being stored, because Constitutionally there is nothing wrong with them storing the data of non-U.S. persons).
- lukifer 13y ago
  > likely to be with "non-U.S. persons." This seems highly suspect; either they have to snoop on you to see if it's okay to snoop on you, and/or do some probabilistic mumbo-jumbo to guess at whether you're a foreigner. > The third party doctrine: by handing information over to Google, etc, you're purposefully exposing the information Doesn't basic encryption (HTTPS) imply an expectation of privacy? Also, assuming the tech companies aren't BSing us, it certainly seems like the data is being consumed against their will as well, so it's not necessarily a matter of Google selling search histories. While I believe that NSA activities already violate the letter and spirit of the 4th Amendment, I absolutely support the idea that we should pass new legislation to protect our privacy rights in the Information Age from both state and corporate power, removing all ambiguity. > why should the standard for what constitutes a search have any relation to copying under the copyright laws There seems to be an interesting Catch-22 here: how can I claim ownership over my data without disclosing it? I could declare every email I send to be a copyrighted work, thus making it illegal to store without permission, yet doing so inherently divulges the information. > Constitutionally there is nothing wrong with them storing the data of non-U.S. persons There isn't, but there should be. The deeper moral issues notwithstanding, we're well on track to destroy our leadership in the global internet industry right now.
  - rayiner 13y ago
    > This seems highly suspect; either they have to snoop on you to see if it's okay to snoop on you, and/or do some probabilistic mumbo-jumbo to guess at whether you're a foreigner. They have these amazing things called IP addresses that tell you what country traffic is coming from. > Doesn't basic encryption (HTTPS) imply an expectation of privacy? Privacy as against who? Even if you use HTTPS, you still expose the clear text to Google, Facebook, etc. I don't think it is an unreasonable interpretation of existing precedent, on the NSA's part, to argue that if random sysadmins at Google can access the data, then the government doesn't need a warrant to subpoena the data. > Also, assuming the tech companies aren't BSing us, it certainly seems like the data is being consumed against their will as well, so it's not necessarily a matter of Google selling search histories. It's not a matter of Google selling search histories. "Private" for the purposes of the 4th amendment means "inside your desk drawer" private, not just "not public." Bank records aren't public, your bank doesn't sell them, but they're not covered by the 4th amendment. > There isn't, but there should be. The deeper moral issues notwithstanding, we're well on track to destroy our leadership in the global internet industry right now. The Constitution determines the rights and obligations of Americans to each other and those on U.S. soil. It's not a vehicle for determining who we treat non-Americans, and should not be so. The country's foreign policy is a political issue, not a legal issue. Indeed, it would be a massive violation of the separation of powers for the courts to start policing how the U.S. treats foreigners, because foreign policy is the exclusive domain of the elected branches, especially the executive. This is by design, the framers intended the U.S. to "speak with one voice" with regards to the outside world. If Americans want to spy on the rest of the world, it's not the courts' job to tell them that they can't. If that hurts American competitiveness in the internet industry, well that's an issue for political debate too. I think as a practical matter the U.S. is far too dominant in software and online technology for NSA spying to be more than a blip, and it's not like other countries don't do it too.

by lukifer 13y ago

DanBC 13y ago

For content data that's held temporarily it counts as caching, and there are probably exemptions in law for Government secret spy agencies. For meta-content that's held forever - I guess they say it's not private and thus they can keep it forever. The UK is going through some kerfuffle around meta-data to allow it to be gathered and kept. See, for example, the exemption in the UK version of the DMCA for people who are "studying cryptography" (http://www.legislation.gov.uk/ukpga/1988/48/section/296ZA http://www.legislation.gov.uk/ukpga/1988/48/section/296ZA) I should just link to UK RIPA (http://www.legislation.gov.uk/ukpga/2000/23/contents http://www.legislation.gov.uk/ukpga/2000/23/contents), especially this bit: (http://www.legislation.gov.uk/ukpga/2000/23/section/42 http://www.legislation.gov.uk/ukpga/2000/23/section/42) but actually all of it. RIPA is interesting. I genuinely don't care about GCHQ caching content for three days and keeping meta data for 30 days. That has no impact on my life. I do care about the abuses that other government departments (usually local government) has carried out using powers under RIPA. Some edits, but I forget to label them! Sorry.

rayiner 13y ago

There are two bases, both of which are pretty uncontroversial: 1) The 4th amendment doesn't extend to non-U.S. persons. The prevailing view of the Constitution is that its scope is territorial. You have to have some connection to the U.S. to have rights and obligations under the Constitution. That means either living here, even if you're not a citizen, or being a citizen, even if you're living abroad. A lot of the NSA's procedures are concerned with making sure that it's data collection is limited to that likely to be with "non-U.S. persons." 2) The third party doctrine: by handing information over to Google, etc, you're purposefully exposing the information and can no longer claim that it's private in the same way the contents of your desk drawer are private. It is already established that bank records and telephone numbers you've dialed are not protected by the 4th amendment for this reason (https://ssd.eff.org/your-computer/govt/privacy https://ssd.eff.org/your-computer/govt/privacy). I'm not sure the degree to which it has been established that the NSA is doing anything that requires treating pure data storage as not a search, but in any case why should the standard for what constitutes a search have any relation to copying under the copyright laws? The intent and purposes of the two regimes are totally different. Also, you have to be careful about whose data is being stored, because Constitutionally there is nothing wrong with them storing the data of non-U.S. persons).

lukifer 13y ago
> likely to be with "non-U.S. persons." This seems highly suspect; either they have to snoop on you to see if it's okay to snoop on you, and/or do some probabilistic mumbo-jumbo to guess at whether you're a foreigner. > The third party doctrine: by handing information over to Google, etc, you're purposefully exposing the information Doesn't basic encryption (HTTPS) imply an expectation of privacy? Also, assuming the tech companies aren't BSing us, it certainly seems like the data is being consumed against their will as well, so it's not necessarily a matter of Google selling search histories. While I believe that NSA activities already violate the letter and spirit of the 4th Amendment, I absolutely support the idea that we should pass new legislation to protect our privacy rights in the Information Age from both state and corporate power, removing all ambiguity. > why should the standard for what constitutes a search have any relation to copying under the copyright laws There seems to be an interesting Catch-22 here: how can I claim ownership over my data without disclosing it? I could declare every email I send to be a copyrighted work, thus making it illegal to store without permission, yet doing so inherently divulges the information. > Constitutionally there is nothing wrong with them storing the data of non-U.S. persons There isn't, but there should be. The deeper moral issues notwithstanding, we're well on track to destroy our leadership in the global internet industry right now.
- rayiner 13y ago
  > This seems highly suspect; either they have to snoop on you to see if it's okay to snoop on you, and/or do some probabilistic mumbo-jumbo to guess at whether you're a foreigner. They have these amazing things called IP addresses that tell you what country traffic is coming from. > Doesn't basic encryption (HTTPS) imply an expectation of privacy? Privacy as against who? Even if you use HTTPS, you still expose the clear text to Google, Facebook, etc. I don't think it is an unreasonable interpretation of existing precedent, on the NSA's part, to argue that if random sysadmins at Google can access the data, then the government doesn't need a warrant to subpoena the data. > Also, assuming the tech companies aren't BSing us, it certainly seems like the data is being consumed against their will as well, so it's not necessarily a matter of Google selling search histories. It's not a matter of Google selling search histories. "Private" for the purposes of the 4th amendment means "inside your desk drawer" private, not just "not public." Bank records aren't public, your bank doesn't sell them, but they're not covered by the 4th amendment. > There isn't, but there should be. The deeper moral issues notwithstanding, we're well on track to destroy our leadership in the global internet industry right now. The Constitution determines the rights and obligations of Americans to each other and those on U.S. soil. It's not a vehicle for determining who we treat non-Americans, and should not be so. The country's foreign policy is a political issue, not a legal issue. Indeed, it would be a massive violation of the separation of powers for the courts to start policing how the U.S. treats foreigners, because foreign policy is the exclusive domain of the elected branches, especially the executive. This is by design, the framers intended the U.S. to "speak with one voice" with regards to the outside world. If Americans want to spy on the rest of the world, it's not the courts' job to tell them that they can't. If that hurts American competitiveness in the internet industry, well that's an issue for political debate too. I think as a practical matter the U.S. is far too dominant in software and online technology for NSA spying to be more than a blip, and it's not like other countries don't do it too.