4 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 W

by bradyd 13y ago

"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." There is nothing in the 4th Amendment that says anything about an expectation of privacy. Besides phone metadata IS private. It is only shared with the person placing the call, the phone company, and the recipient of the call. It is not publicly available. Just because I share something with someone else does not mean it is no longer private, just that it is private between myself and that other person.

rayiner 13y ago
> There is nothing in the 4th Amendment that says anything about an expectation of privacy. Ignoring the 4th amendment jurisprudence is a double-edged sword, because it allows interpretations of the 4th amendment that are a lot more conservative than the modern "expectation of privacy" formulation. The original intent of the 4th was just to prevent customs searches of your home. Extending it to communications at all was an invention of SCOTUS. Moreover, the interpretation of the word "their" is a challenge. How can Bob and Marie say that AT&T's records about them are "their . . . papers, and effects . . ." when they didn't record that information, they aren't storing that information, and they don't even have access to that information? No, if you're a privacy advocate, you're far better starting from the "expectation of privacy" springboard than going back to the literal text. > It is only shared with the person placing the call, the phone company, and the recipient of the call. The difference between "private" and "public" is a spectrum. On one end of the spectrum are the thoughts in your head. On the other end are thoughts you publish in the NYT. The way the 4th amendment jurisprudence uses the word "private" it means things that are close in the spectrum to the former extreme, not everything that isn't at the latter extreme. Sharing something by publishing it in the NYT means it's not private. So does sharing something with potentially thousands of people at AT&T or Google.
- bradyd 13y ago
  "How can Bob and Marie say that AT&T's records about them are "their . . . papers, and effects . . ." when they didn't record that information, they aren't storing that information, and they don't even have access to that information?" I agree with you on this, but I don't agree that means it is no longer protected by the 4th Amendment. That information is AT&T's "papers and effects", so collecting it without a warrant is a violation of AT&T's 4th Amendment rights, not necessarily Bob and Marie's.
  - rayiner 13y ago
    You don't need a warrant if the party consents, and as far as I know, AT&T hands that information over voluntarily or in response to valid subpoenas.
- ensignavenger 13y ago
  "The original intent of the 4th was just to prevent customs searches of your home." How did you reach that conclusion? I would have thought that if the Founders intended to limit the 4th to "just customs searches" they would have said so? Given that at the time, there was no electronic communication, it isn't really surprising that the 4th doesn't mention it explicitly, and only mentions "papers".
  - mpyne 13y ago
    > How did you reach that conclusion? I would have thought that if the Founders intended to limit the 4th to "just customs searches" they would have said so? The Bill of Rights were born of the same environment that gave a specific protection regarding the right to bear arms and regarding the quartering of soldiers in private homes. They were in many ways a reaction to British actions prior to the American Revolutionary War and not a simple enumeration of rights. Indeed, the Federalists felt the Bill of Rights was self-evident and did not need to be duplicated in that fashion, and they added in a separate Amendment making clear that the fact that these rights were enumerated should not be construed to mean that the list of rights was exhaustive. Getting back to your question then, the Fourth Amendment was a reaction to British "writs of assistance" that allowed customs inspectors wide-ranging powers of search and seizure to stop New England merchants from smuggling goods. Indeed, if the writers of the Fourth Amendment had meant to completely foreclose the possibility of government warrantless searches then they would not have inserted the weasel word "reasonable" into its text. So the good news is that reasonable can change over time to become more restrictive on government's ability to search. The bad news is that until this change actually happens in the courts then it's hard to say specifically that the government is "oppressing the people" just because their lawyers don't agree with your interpretation of the Fourth Amendment.
iamwithnail 13y ago
Except that the NSA has, by its own admission, been gathering metadata without warrant, for some time, so it's not private, by any reasonable standard of the concept. There are degrees of privacy, but arguably once the data has been removed from the context you shared it in, it's not private - the "moment of exposure" is a crucial concept here.

by bradyd 13y ago

rayiner 13y ago

> There is nothing in the 4th Amendment that says anything about an expectation of privacy. Ignoring the 4th amendment jurisprudence is a double-edged sword, because it allows interpretations of the 4th amendment that are a lot more conservative than the modern "expectation of privacy" formulation. The original intent of the 4th was just to prevent customs searches of your home. Extending it to communications at all was an invention of SCOTUS. Moreover, the interpretation of the word "their" is a challenge. How can Bob and Marie say that AT&T's records about them are "their . . . papers, and effects . . ." when they didn't record that information, they aren't storing that information, and they don't even have access to that information? No, if you're a privacy advocate, you're far better starting from the "expectation of privacy" springboard than going back to the literal text. > It is only shared with the person placing the call, the phone company, and the recipient of the call. The difference between "private" and "public" is a spectrum. On one end of the spectrum are the thoughts in your head. On the other end are thoughts you publish in the NYT. The way the 4th amendment jurisprudence uses the word "private" it means things that are close in the spectrum to the former extreme, not everything that isn't at the latter extreme. Sharing something by publishing it in the NYT means it's not private. So does sharing something with potentially thousands of people at AT&T or Google.

bradyd 13y ago
"How can Bob and Marie say that AT&T's records about them are "their . . . papers, and effects . . ." when they didn't record that information, they aren't storing that information, and they don't even have access to that information?" I agree with you on this, but I don't agree that means it is no longer protected by the 4th Amendment. That information is AT&T's "papers and effects", so collecting it without a warrant is a violation of AT&T's 4th Amendment rights, not necessarily Bob and Marie's.
- rayiner 13y ago
  You don't need a warrant if the party consents, and as far as I know, AT&T hands that information over voluntarily or in response to valid subpoenas.
ensignavenger 13y ago
"The original intent of the 4th was just to prevent customs searches of your home." How did you reach that conclusion? I would have thought that if the Founders intended to limit the 4th to "just customs searches" they would have said so? Given that at the time, there was no electronic communication, it isn't really surprising that the 4th doesn't mention it explicitly, and only mentions "papers".
- mpyne 13y ago
  > How did you reach that conclusion? I would have thought that if the Founders intended to limit the 4th to "just customs searches" they would have said so? The Bill of Rights were born of the same environment that gave a specific protection regarding the right to bear arms and regarding the quartering of soldiers in private homes. They were in many ways a reaction to British actions prior to the American Revolutionary War and not a simple enumeration of rights. Indeed, the Federalists felt the Bill of Rights was self-evident and did not need to be duplicated in that fashion, and they added in a separate Amendment making clear that the fact that these rights were enumerated should not be construed to mean that the list of rights was exhaustive. Getting back to your question then, the Fourth Amendment was a reaction to British "writs of assistance" that allowed customs inspectors wide-ranging powers of search and seizure to stop New England merchants from smuggling goods. Indeed, if the writers of the Fourth Amendment had meant to completely foreclose the possibility of government warrantless searches then they would not have inserted the weasel word "reasonable" into its text. So the good news is that reasonable can change over time to become more restrictive on government's ability to search. The bad news is that until this change actually happens in the courts then it's hard to say specifically that the government is "oppressing the people" just because their lawyers don't agree with your interpretation of the Fourth Amendment.

iamwithnail 13y ago

Except that the NSA has, by its own admission, been gathering metadata without warrant, for some time, so it's not private, by any reasonable standard of the concept. There are degrees of privacy, but arguably once the data has been removed from the context you shared it in, it's not private - the "moment of exposure" is a crucial concept here.