7 ms·

This is a solid decision that will curb abusive searches and help other Fourth Amendment litigation, including ongoing cases involving warrantless cell phone tr

by declan 12y ago

This is a solid decision that will curb abusive searches and help other Fourth Amendment litigation, including ongoing cases involving warrantless cell phone tracking. (That's because many of the concepts about the importance of mobile devices are true in the tracking context as well.) But it also shows how long it takes for the legal system to fix these problems. I wrote these articles over 7 years ago about how cops in San Francisco and elsewhere were searching phones a decade ago, and the practice has likely been going on for even longer: http://news.cnet.com/Police-Blotter-Cops-need-warrant-to-search-cell-phone/2100-1047_3-6187389.html http://news.cnet.com/Police-Blotter-Cops-need-warrant-to-sea... http://news.cnet.com/Police-blotter-Cops-OK-to-copy-cell-phone-content/2100-1030_3-6177464.html http://news.cnet.com/Police-blotter-Cops-OK-to-copy-cell-pho... This may be a lesson for HN readers trying to solve privacy problems. Option #1, enacting a new law, tends to be an exercise in futility: California rejected a fix to cell phone searches in 2011, and Congress did nothing on cell phone searches (nor has it enacted a law to fix warrantless email searches or rein in the NSA post-Snowden). Option #2, relying on the courts, may work, but it may not. It took 10 years to fix cell phone searches, and only after millions of dollars worth of concerted advocacy by EFF, ACLU, etc. And it might have gone the other way: remember the courts have blessed the erosion of Fourth Amendment protections because of the War On Some Politically Unpopular Drugs. Option #3, creating technology, works as soon as you can deploy it, and is subject to the laws of mathematics rather than whether a SCOTUS justice is a crankypants today when it comes to privacy. Of course the NSA may try to subvert your encryption/anonymizer/etc., but its attempts may fail, and, besides, intelligence agencies already subverted Congress long ago. :)

pdkl95 12y ago
Option #4, All of the above. Many of these issues are both technological problems and political problems. Neglecting either is not a particularly good strategy.
- declan 12y ago
  Sure, if resources were unlimited. But they're not, so you have to pick and choose. You're right that option #2 can work: EFF has represented me and a dozen or so other plaintiffs in a case where we won at the Supreme Court, and the ACLU has represented me in two cases. I'd be a hypocrite if I didn't admit the possibility of winning is real. :) But if you argue for option #1, history matters: what significant pro-privacy law has Congress enacted in the last 15-20 years? (I can name plenty that have gone in the other direction.) More to the point, HN readers are more likely to be in a position to pursue option #3. We do have a few lawyers and law students here, but far more engineers, CS students, and programmers.
  - HistoryInAction 12y ago
    Also, as a politicker, I can do much more when devs produce a 'crisis situation' where the existing law is provably, laughably out of date due to technological change. Never neglect legislation (incumbents won't) but definitely focus on #3.
    - declan 12y ago
      Interesting point! I like your way of thinking, though (this is the curmudgeon in me), I'd also suggest looking at some 'crisis situations' and legislative responses: * Porn exists on the Internet! LET'S PASS A LAW BANNING IT. That became the 1996 Communications Decency Act. * Images of adult porn actors can be morphed to look like minors! LET'S PASS A LAW BANNING IT. That became the Child Pornography Prevention Act. * U.S. citizens can use encryption that can't be easily broken by FedGov! LET'S PASS A LAW BANNING IT. That became the bill approved by one House of Representatives committee, which did not become law. * Spam exists! LET'S PASS A LAW BANNING IT. Except the Can-Spam act actually legalized spam with opt-out mechanisms and overruled state laws that actually did ban it. * Internet piracy exists! LET'S PASS A LAW BANNING IT. The No Electronic Theft Act made it a federal felony punishable by years in prison to share a copy of, say, Microsoft Office with your friend. * Gambling exists on the Internet! LET'S PASS A LAW BANNING IT. That became the Unlawful Internet Gambling Enforcement Act of 2006. * Porn still exists on the Internet! LET'S PASS A LAW BANNING IT IN SCHOOLS AND LIBRARIES. That became the Children’s Internet Protection Act. * U.S. citizens still can use encryption that can't be easily broken! LET'S PASS A LAW REQUIRING SURVEILLANCE BACKDOORS IN SOCIAL NETWORKS, EMAIL PROVIDERS, PHOTO SHARING STARTUPS, ETC. That became the FBI's draft legislation; my article disclosing details in 2012 is here: http://www.cnet.com/news/fbi-we-need-wiretap-ready-web-sites-now/ http://www.cnet.com/news/fbi-we-need-wiretap-ready-web-sites... Politicians are reactionary. Some of the above laws did not get enacted or were struck down; others are on the books today. We shouldn't count on congresscritters to do the right thing when the law is provably, laughably out of date. In fact, generally they do exactly the wrong thing. :)

by declan 12y ago

pdkl95 12y ago

Option #4, All of the above. Many of these issues are both technological problems and political problems. Neglecting either is not a particularly good strategy.

declan 12y ago
Sure, if resources were unlimited. But they're not, so you have to pick and choose. You're right that option #2 can work: EFF has represented me and a dozen or so other plaintiffs in a case where we won at the Supreme Court, and the ACLU has represented me in two cases. I'd be a hypocrite if I didn't admit the possibility of winning is real. :) But if you argue for option #1, history matters: what significant pro-privacy law has Congress enacted in the last 15-20 years? (I can name plenty that have gone in the other direction.) More to the point, HN readers are more likely to be in a position to pursue option #3. We do have a few lawyers and law students here, but far more engineers, CS students, and programmers.
- HistoryInAction 12y ago
  Also, as a politicker, I can do much more when devs produce a 'crisis situation' where the existing law is provably, laughably out of date due to technological change. Never neglect legislation (incumbents won't) but definitely focus on #3.
  - declan 12y ago
    Interesting point! I like your way of thinking, though (this is the curmudgeon in me), I'd also suggest looking at some 'crisis situations' and legislative responses: * Porn exists on the Internet! LET'S PASS A LAW BANNING IT. That became the 1996 Communications Decency Act. * Images of adult porn actors can be morphed to look like minors! LET'S PASS A LAW BANNING IT. That became the Child Pornography Prevention Act. * U.S. citizens can use encryption that can't be easily broken by FedGov! LET'S PASS A LAW BANNING IT. That became the bill approved by one House of Representatives committee, which did not become law. * Spam exists! LET'S PASS A LAW BANNING IT. Except the Can-Spam act actually legalized spam with opt-out mechanisms and overruled state laws that actually did ban it. * Internet piracy exists! LET'S PASS A LAW BANNING IT. The No Electronic Theft Act made it a federal felony punishable by years in prison to share a copy of, say, Microsoft Office with your friend. * Gambling exists on the Internet! LET'S PASS A LAW BANNING IT. That became the Unlawful Internet Gambling Enforcement Act of 2006. * Porn still exists on the Internet! LET'S PASS A LAW BANNING IT IN SCHOOLS AND LIBRARIES. That became the Children’s Internet Protection Act. * U.S. citizens still can use encryption that can't be easily broken! LET'S PASS A LAW REQUIRING SURVEILLANCE BACKDOORS IN SOCIAL NETWORKS, EMAIL PROVIDERS, PHOTO SHARING STARTUPS, ETC. That became the FBI's draft legislation; my article disclosing details in 2012 is here: http://www.cnet.com/news/fbi-we-need-wiretap-ready-web-sites-now/ http://www.cnet.com/news/fbi-we-need-wiretap-ready-web-sites... Politicians are reactionary. Some of the above laws did not get enacted or were struck down; others are on the books today. We shouldn't count on congresscritters to do the right thing when the law is provably, laughably out of date. In fact, generally they do exactly the wrong thing. :)