5 ms·

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 Wa

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.

a3n 13y ago
We should write that down somewhere.
rayiner 13y ago
Okay, so tell me how call records generates by ATT that are never even in my possession are nonetheless "my" papers or effects? The text of the amendment does not clearly support your position. Indeed, the focus is clearly on personal things (house, person), not things possessed by third parties.
- kabdib 13y ago
  By extension, then, wiretaps are just fine, by anybody. All that data, entering and leaving your house, is not in your house, so it's fair game. So is opening mail (if it's in the post office it's not under your control, right?) Your car? It's on the street, so what if we attached GPS devices. Those microphones and cameras in public places are there for your protection. We'll never abuse that, trust us. Oh never never never. ("Hey, this guy voted Replubricatic last election, stick him on the list, too. Hey, he gave money to my opponent!")
  - rayiner 13y ago
    Postal mail is historically treated as a special case because it's a government agency. Cars on the street are still your property, even when you're not in it, just as your house is still your property even when you're on vacation. Wiretaps and documents hosted on the "cloud" are somewhere in-between. The first time the Supreme Court considered the Constitutionality of warrantless wire taps, it found that they were not protected by the 4th amendment. In the 1960's they overturned that precedent, but using reasoning that really only makes sense in an analog context where your voice directly modulates signals on a wire, and there is no intermediate storage. Call records are further removed still. They're not a recording of your voice. They are generated by the telco, for the telco's own purposes. They are never in your possession, and you don't even know their contents. It's a huge stretch to say that they are nonetheless "your" papers. Finally, microphones and cameras in public are clearly Constitutional. Whether they can be abused is irrelevant. The 4th amendment is not a prohibition on anything that can be abused. It's a prohibition designed to protect peoples' physical persons and their property rights from government searches.
    - danielweber 13y ago
      Historically, are safety deposit boxes considered your property?
      - rayiner 13y ago
        Generally, safety deposit boxes are considered your property. However, renters in general have a property right in the space they rent, derived from landlord-tenant law. But that property right involves reciprocal rights, liabilities, and obligations. If a bank negligently causes loss of the contents of your safe deposit box, they can be held liable for that loss. When analogizing from safe deposit boxes to the cloud, as many have tried to do (including in legal cases), that whole element of reciprocal obligations is missing. Do you have a property right in your Google Drive? Do you pay rent? Can you sue Google if they negligently lose the contents? Does Google have any obligations to give you say 30 days notice before they shut down your account? These reciprocal obligations are the difference between renting a garage to store your papers (which would fall within the 4th amendment), and simply leaving your papers in a friends' garage (which wouldn't).
    - kabdib 13y ago
      While it's unclear what the line is, it's clear that it has been crossed. When you start needing lawyers to split hairs, it's time to re-examine what you've hatched and ask if it even passes a giggle test. "Secret court" and "All this stuff we've collected? We haven't actually collected it until we look at it" and oversight by people who are clearly invested in keeping things cozy. This is all madness. How did we get here? I might not know enough to know where to draw the line, but I know enough to know that it's gone wrong, and that erring on the side of severely restricting this kind of behavior and shedding light on what has happened is probably the best course of action.
- samolang 13y ago
  > Indeed, the focus is clearly on personal things (house, person), not things possessed by third parties. You need to understand the context. People did not store information about their private communications with third parties in 1776. Can you call AT&T and ask for someone else's records and get them? Why not? Things you wish to stay private do stay private unless a warrant is issued citing probable cause to violate your privacy.
  - rayiner 13y ago
    > People did not store information about their private communications with third parties in 1776. People stored all sorts of private information with third parties in 1776. They had accountants and bookkeepers and suppliers and vendors, etc. > Can you call AT&T and ask for someone else's records and get them? Can you call up Ernst and Young and ask for someone else's accounting records? No, but the government can. The test isn't "things you wish to stay private." It's "reasonable expectation of privacy." It's an objective test, not a subjective one. And I find it very difficult to understand how anyone could have a "reasonable expectation" of privacy in information generated by a third party for its own use, that's exposed to god knows how many engineers and system administrators.
    - samolang 13y ago
      The contents of my emails are exposed to "god know how many engineers and system administrators." I still think I have a "reasonable expectation of privacy" with regards to the contents of my emails. If you hire a cleaning lady and she has access to private letters in your home, does that mean you forfeit your reasonable expectation that those letters are private?
      - rayiner 13y ago
        People of course can disagree about what is "reasonable." I personally don't consider my e-mail private, not when a Google engineer has been caught stalking people through their GChats (http://gawker.com/5637234/gcreep-google-engineer-stalked-teens-spied-on-chats http://gawker.com/5637234/gcreep-google-engineer-stalked-tee...), and not when the whole business model is built on reading through those e-mails to serve advertisements. I consider that quite different than my cleaning lady incidentally having access to documents in my desk drawer.

a3n 13y ago

We should write that down somewhere.

rayiner 13y ago

Okay, so tell me how call records generates by ATT that are never even in my possession are nonetheless "my" papers or effects? The text of the amendment does not clearly support your position. Indeed, the focus is clearly on personal things (house, person), not things possessed by third parties.

kabdib 13y ago
By extension, then, wiretaps are just fine, by anybody. All that data, entering and leaving your house, is not in your house, so it's fair game. So is opening mail (if it's in the post office it's not under your control, right?) Your car? It's on the street, so what if we attached GPS devices. Those microphones and cameras in public places are there for your protection. We'll never abuse that, trust us. Oh never never never. ("Hey, this guy voted Replubricatic last election, stick him on the list, too. Hey, he gave money to my opponent!")
- rayiner 13y ago
  Postal mail is historically treated as a special case because it's a government agency. Cars on the street are still your property, even when you're not in it, just as your house is still your property even when you're on vacation. Wiretaps and documents hosted on the "cloud" are somewhere in-between. The first time the Supreme Court considered the Constitutionality of warrantless wire taps, it found that they were not protected by the 4th amendment. In the 1960's they overturned that precedent, but using reasoning that really only makes sense in an analog context where your voice directly modulates signals on a wire, and there is no intermediate storage. Call records are further removed still. They're not a recording of your voice. They are generated by the telco, for the telco's own purposes. They are never in your possession, and you don't even know their contents. It's a huge stretch to say that they are nonetheless "your" papers. Finally, microphones and cameras in public are clearly Constitutional. Whether they can be abused is irrelevant. The 4th amendment is not a prohibition on anything that can be abused. It's a prohibition designed to protect peoples' physical persons and their property rights from government searches.
  - danielweber 13y ago
    Historically, are safety deposit boxes considered your property?
    - rayiner 13y ago
      Generally, safety deposit boxes are considered your property. However, renters in general have a property right in the space they rent, derived from landlord-tenant law. But that property right involves reciprocal rights, liabilities, and obligations. If a bank negligently causes loss of the contents of your safe deposit box, they can be held liable for that loss. When analogizing from safe deposit boxes to the cloud, as many have tried to do (including in legal cases), that whole element of reciprocal obligations is missing. Do you have a property right in your Google Drive? Do you pay rent? Can you sue Google if they negligently lose the contents? Does Google have any obligations to give you say 30 days notice before they shut down your account? These reciprocal obligations are the difference between renting a garage to store your papers (which would fall within the 4th amendment), and simply leaving your papers in a friends' garage (which wouldn't).
  - kabdib 13y ago
    While it's unclear what the line is, it's clear that it has been crossed. When you start needing lawyers to split hairs, it's time to re-examine what you've hatched and ask if it even passes a giggle test. "Secret court" and "All this stuff we've collected? We haven't actually collected it until we look at it" and oversight by people who are clearly invested in keeping things cozy. This is all madness. How did we get here? I might not know enough to know where to draw the line, but I know enough to know that it's gone wrong, and that erring on the side of severely restricting this kind of behavior and shedding light on what has happened is probably the best course of action.
samolang 13y ago
> Indeed, the focus is clearly on personal things (house, person), not things possessed by third parties. You need to understand the context. People did not store information about their private communications with third parties in 1776. Can you call AT&T and ask for someone else's records and get them? Why not? Things you wish to stay private do stay private unless a warrant is issued citing probable cause to violate your privacy.
- rayiner 13y ago
  > People did not store information about their private communications with third parties in 1776. People stored all sorts of private information with third parties in 1776. They had accountants and bookkeepers and suppliers and vendors, etc. > Can you call AT&T and ask for someone else's records and get them? Can you call up Ernst and Young and ask for someone else's accounting records? No, but the government can. The test isn't "things you wish to stay private." It's "reasonable expectation of privacy." It's an objective test, not a subjective one. And I find it very difficult to understand how anyone could have a "reasonable expectation" of privacy in information generated by a third party for its own use, that's exposed to god knows how many engineers and system administrators.
  - samolang 13y ago
    The contents of my emails are exposed to "god know how many engineers and system administrators." I still think I have a "reasonable expectation of privacy" with regards to the contents of my emails. If you hire a cleaning lady and she has access to private letters in your home, does that mean you forfeit your reasonable expectation that those letters are private?
    - rayiner 13y ago
      People of course can disagree about what is "reasonable." I personally don't consider my e-mail private, not when a Google engineer has been caught stalking people through their GChats (http://gawker.com/5637234/gcreep-google-engineer-stalked-teens-spied-on-chats http://gawker.com/5637234/gcreep-google-engineer-stalked-tee...), and not when the whole business model is built on reading through those e-mails to serve advertisements. I consider that quite different than my cleaning lady incidentally having access to documents in my desk drawer.