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I would include call record and geolocation data in the "non-invasive" category, because they can be accessed without disrupting the target. On the other hand,

I would include call record and geolocation data in the "non-invasive" category, because they can be accessed without disrupting the target. On the other hand, "publicly available" data are the publicly observable actions the target takes. Twenty years ago that meant getting in a car and driving somewhere. These days that might also include a Twitter stream or GPS EXIF data on publicly published photos.

jrochkind1 13y ago
I suspect the courts would agree that actual public things, like a twitter stream or publicly published photos, can be viewed and recorded without a warrant. And I would agree with you that that is right and proper. I find your 'non-invasive' category to be odd though. I am not sure there is any legal basis for 'non-invasive' having any bearing on these issues, nor do I think it ought to. Recording the full contents of all your phone calls would be just as 'non-invasive' as recording the 'metadata' -- it would not 'disrupt the target' in any case. I don't see what 'non-invasive' has got to do with it.
- dkokelley 13y ago
  From a legal perspective, I don't know if non-invasive data collection falls under a certain category. I know that authorities cannot enter my home and bug it or install cameras without a warrant. Authorities cannot install a camera in my bathroom to see if I am flushing away drugs, but can they ASK the water company to tap my pipe as it returns to wastewater management? The first action would require a warrant, since they are violating my home and person to obtain the information. If the same or comparable data are gathered through the cooperation of a third party, does that action still require a warrant? I suppose the standard of 'non-invasive' is whether information is collected directly from my non-public activities (warrant certainly required) or from compliant third parties. Of course if the third party does not cooperate then a warrant will compel their cooperation. I would argue that ANY data collection on a target should require a warrant issued by a judge for probable cause. So, indiscriminate collection of cell phone metadata would be prohibited, because my metadata is included, and there is no probable cause for surveillance against me.

jrochkind1 13y ago

I suspect the courts would agree that actual public things, like a twitter stream or publicly published photos, can be viewed and recorded without a warrant. And I would agree with you that that is right and proper. I find your 'non-invasive' category to be odd though. I am not sure there is any legal basis for 'non-invasive' having any bearing on these issues, nor do I think it ought to. Recording the full contents of all your phone calls would be just as 'non-invasive' as recording the 'metadata' -- it would not 'disrupt the target' in any case. I don't see what 'non-invasive' has got to do with it.

dkokelley 13y ago
From a legal perspective, I don't know if non-invasive data collection falls under a certain category. I know that authorities cannot enter my home and bug it or install cameras without a warrant. Authorities cannot install a camera in my bathroom to see if I am flushing away drugs, but can they ASK the water company to tap my pipe as it returns to wastewater management? The first action would require a warrant, since they are violating my home and person to obtain the information. If the same or comparable data are gathered through the cooperation of a third party, does that action still require a warrant? I suppose the standard of 'non-invasive' is whether information is collected directly from my non-public activities (warrant certainly required) or from compliant third parties. Of course if the third party does not cooperate then a warrant will compel their cooperation. I would argue that ANY data collection on a target should require a warrant issued by a judge for probable cause. So, indiscriminate collection of cell phone metadata would be prohibited, because my metadata is included, and there is no probable cause for surveillance against me.