4 ms·

"I don't want to see us throw the baby out with the bath water as it were, nor do I want the unreasonable encroachment on privacy to continue." I believe you h

"I don't want to see us throw the baby out with the bath water as it were, nor do I want the unreasonable encroachment on privacy to continue." I believe you have a valid point about moderation being the key here. Obviously there are bad people in the world, and obviously the state has a need to investigate their actions in an effort to protect us from them. And it is always a mistake to go around with your hair on fire demanding absolute answers to nuanced questions. But right now from where I'm standing? I'm happy with throwing a lot of baby away. Maybe we keep his foot. Or a toenail. Rest of him's gotta go. Here's the reason why: we are at the end of a slippery slope, not at the beginning. We started off with the state knowing next to nothing. Bit by bit, over the decades, they've encroached more and more. We've got to roll this back and take an honest look at whether all that we've lost was worth it.

Aloha 13y ago
I actually would argue we're about half way up, we can choose to continue to slide down the hill, or claw our way higher, and have the government have less access, or 'give up' and slide down the hill, hoping that the overlords are benevolent. I personally want to claw our way a little higher up the hill again.
rayiner 13y ago
I agree we're on a slippery slope, but disagree that it's a slope of state encroachment. The precedents at issue here are decades old (the line of cases starts in the 1960's), and even the first time the 4th amendment status of phone calls came up in the 1920's, the Supreme Court determined that they were not protected because the phone company had access to them. The government has not been invading previously protected spaces. The slope here is people broadcasting previously private information indiscriminately into the ether, to locations that the government always had access to.
- DanielBMarkham 13y ago
  I believe that you are saying that the people, by using new methods to communicate, are encroaching in on government's "natural" right to scrape up everything it possibly can? That's certainly an interesting way of looking at it. The government retains all the rights to collect anything it can, and it's up to the citizens to act in such a manner as to stop it. Please correct me if I missed this. Fascinating 180-degree reversal of natural rights.
  - rayiner 13y ago
    Constitutionally, if an end is generally within the federal government's enumerated powers, the government can take any steps "necessary and proper" to achieve that end, unless it infringes on a right. That's basic U.S. Constitutional law since 1819. It has been long understood, since at least 1963 if not earlier, that the federal government does not violate someone's 4th amendment rights by acquiring information that a person has voluntarily disclosed to a third party, on the very reasonable grounds that if you risk someone disclosing that information by divulging it to them, then it's not really private information. What you've seen since then is not an encroachment of the government into areas previously considered private. Instead, what's changed is people sharing "private" information in ways that were never protected: specifically by exposing them broadly to third parties.
    - DanielBMarkham 13y ago
      Well, there it is. The administration's case. It is legal. However, my question was along the lines of political theory, not constitutional law. There's no doubt that some really powerful legal minds have concluded that all of this is legal, but can a government function this way? Obviously this type of information collection and storage wasn't happening before at this scale. Obviously it is now. Aside from the most likely correct reading of the constitution, does it not seem from a simply observational viewpoint that something is now amiss? Would it not be reasonable for the average citizen, looking back on decades and centuries of private conversations with his friends, meetings which did not involve public records being kept, and private papers immune from government scrutiny, to wonder if somehow he wasn't getting the short end of the stick compared to his ancestors? Or is your response that since it is legal, our citizen should just shut up? Or perhaps you have something along the lines of "elect representatives who will then pass laws" I find it fascinating that the status quo has changed so much, and because a technology shift was involved, your presumption is that it is the citizen who should have been more wary, lest his personal affairs become part of the public record. Especially since 1) officials have been very careful not to allow the citizens to know what they are recording and what their capabilities are, and 2) It's virtually impossible to live in the modern world without "broadcasting" If you've got something else besides "but it's legal!" I'd love to hear it. Thanks for the engagement, btw.
- rhizome 13y ago
  Just because the third-party doctrine has always been applied to phone records, doesn't mean they were not protected. The court just decided they weren't. The TPD is not law.
  - rayiner 13y ago
    I'm normally amenable to the "just because the Supreme Court says so doesn't mean they're right" line of argument, but in this case not as much. The 4th amendment prohibits "unreasonable" searches and seizures. The word "reasonable" has an important significance, one of which the founders (being mostly lawyers in the Anglo tradition) were aware. When the standard for something is "reasonableness" that essentially commits to the judiciary the task of drawing lines on a case-by-case basis and developing doctrines to guide that task. In other words, what the Supreme Court says about the 4th amendment has particular relevance because the wording of the Constitution commits to the judiciary, in a special way, the task of determining the scope of the 4th amendment.
    - rhizome 13y ago
      Of course, but by the same token it doesn't make sense to say phone metadata was previously protected nor unprotected. It was just an early point (cf. CFAA) at which the gov't made a case that they should never be blocked from getting this information whenever they want, for any reason. Likewise, "reasonable" is really putting lipstick on the pig, since there was really no previous history of use for the data, aside from phone companies keeping it away from law enforcement as a matter of business. Furthermore, as far as the TPD goes, there is no "case by case" basis once the judiciary says, "if the person gives it to a business, it's yours."

Aloha 13y ago

I actually would argue we're about half way up, we can choose to continue to slide down the hill, or claw our way higher, and have the government have less access, or 'give up' and slide down the hill, hoping that the overlords are benevolent. I personally want to claw our way a little higher up the hill again.

rayiner 13y ago

I agree we're on a slippery slope, but disagree that it's a slope of state encroachment. The precedents at issue here are decades old (the line of cases starts in the 1960's), and even the first time the 4th amendment status of phone calls came up in the 1920's, the Supreme Court determined that they were not protected because the phone company had access to them. The government has not been invading previously protected spaces. The slope here is people broadcasting previously private information indiscriminately into the ether, to locations that the government always had access to.

DanielBMarkham 13y ago
I believe that you are saying that the people, by using new methods to communicate, are encroaching in on government's "natural" right to scrape up everything it possibly can? That's certainly an interesting way of looking at it. The government retains all the rights to collect anything it can, and it's up to the citizens to act in such a manner as to stop it. Please correct me if I missed this. Fascinating 180-degree reversal of natural rights.
- rayiner 13y ago
  Constitutionally, if an end is generally within the federal government's enumerated powers, the government can take any steps "necessary and proper" to achieve that end, unless it infringes on a right. That's basic U.S. Constitutional law since 1819. It has been long understood, since at least 1963 if not earlier, that the federal government does not violate someone's 4th amendment rights by acquiring information that a person has voluntarily disclosed to a third party, on the very reasonable grounds that if you risk someone disclosing that information by divulging it to them, then it's not really private information. What you've seen since then is not an encroachment of the government into areas previously considered private. Instead, what's changed is people sharing "private" information in ways that were never protected: specifically by exposing them broadly to third parties.
  - DanielBMarkham 13y ago
    Well, there it is. The administration's case. It is legal. However, my question was along the lines of political theory, not constitutional law. There's no doubt that some really powerful legal minds have concluded that all of this is legal, but can a government function this way? Obviously this type of information collection and storage wasn't happening before at this scale. Obviously it is now. Aside from the most likely correct reading of the constitution, does it not seem from a simply observational viewpoint that something is now amiss? Would it not be reasonable for the average citizen, looking back on decades and centuries of private conversations with his friends, meetings which did not involve public records being kept, and private papers immune from government scrutiny, to wonder if somehow he wasn't getting the short end of the stick compared to his ancestors? Or is your response that since it is legal, our citizen should just shut up? Or perhaps you have something along the lines of "elect representatives who will then pass laws" I find it fascinating that the status quo has changed so much, and because a technology shift was involved, your presumption is that it is the citizen who should have been more wary, lest his personal affairs become part of the public record. Especially since 1) officials have been very careful not to allow the citizens to know what they are recording and what their capabilities are, and 2) It's virtually impossible to live in the modern world without "broadcasting" If you've got something else besides "but it's legal!" I'd love to hear it. Thanks for the engagement, btw.
rhizome 13y ago
Just because the third-party doctrine has always been applied to phone records, doesn't mean they were not protected. The court just decided they weren't. The TPD is not law.
- rayiner 13y ago
  I'm normally amenable to the "just because the Supreme Court says so doesn't mean they're right" line of argument, but in this case not as much. The 4th amendment prohibits "unreasonable" searches and seizures. The word "reasonable" has an important significance, one of which the founders (being mostly lawyers in the Anglo tradition) were aware. When the standard for something is "reasonableness" that essentially commits to the judiciary the task of drawing lines on a case-by-case basis and developing doctrines to guide that task. In other words, what the Supreme Court says about the 4th amendment has particular relevance because the wording of the Constitution commits to the judiciary, in a special way, the task of determining the scope of the 4th amendment.
  - rhizome 13y ago
    Of course, but by the same token it doesn't make sense to say phone metadata was previously protected nor unprotected. It was just an early point (cf. CFAA) at which the gov't made a case that they should never be blocked from getting this information whenever they want, for any reason. Likewise, "reasonable" is really putting lipstick on the pig, since there was really no previous history of use for the data, aside from phone companies keeping it away from law enforcement as a matter of business. Furthermore, as far as the TPD goes, there is no "case by case" basis once the judiciary says, "if the person gives it to a business, it's yours."