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What you say is true, but the Court's language in this case strongly suggests that it would find a similar privacy right in documents held in the cloud independ

by PaulAJ 12y ago

What you say is true, but the Court's language in this case strongly suggests that it would find a similar privacy right in documents held in the cloud independently of cellphones. This is contrary to Smith vs Maryland, which the government uses as justification for gathering metadata, in which it was held that a single phone number could be passed to the police without a warrant because it had already been voluntarily shared with the phone company. Hence when the NSA "grab everything" policy eventually winds up in the Supreme Court it is likely to be judged contrary to the fourth amendment. From a privacy right in documents held on my behalf by a third party it is a very small step to a privacy right in documents in transit from one place to another, especially if encryption has been used to protect the documents in transit. Thus the Court seems to be angling towards a new third party doctrine in which people have a reasonable expectation of privacy (and hence fourth amendment protection) for documents held on their behalf by a third party provided that the third party has undertaken to keep the documents private. Your question about radio versus cable is simple to answer. Data transmitted by a cable requires physical access to the cable to intercept, while a radio broadcast is, by its nature, sent to anyone capable of receiving it. Hence it is perfectly reasonable to argue that anyone transmitting data via radio has given up any expectation of privacy in that data, but that this has not occurred for data transmitted through a private cable. Of course most people transmitting private data via radio will encrypt it, and encryption clearly signals an intention to keep the data private. An undersea cable is the private property of the company that owns it. If that company is a US person then obviously it enjoys constitutional protection. Even if it is not, the new third party doctrine I talked about above would protect the documents of US persons from arbitrary US government search even when held or transmitted by a non-US company.

rayiner 12y ago
You're right that the discussion on page 21 of the opinion suggests that the Court would find a privacy right in documents held in the cloud. Indeed, the government seemed to have conceded that point! "The United States concedes that the search incident to arrest exception may not be stretched to cover a search of files accessed remotely—that is, a search of files stored in the cloud." Slip. Op. at 21. Incidentally, I strongly suggest that anyone who says "the Court doesn't understand computers" read pages 19-21 of the opinion. It's a very cogent, if layman's description of the technical aspects of the case. However, I don't think the opinion contradicts Smith v. Maryland. There are two aspects to that case: 1) the user has knowingly exposed the phone number to the phone company; 2) the phone company doesn't just have access to the phone number, but actively processes it for billing purposes. I think the second prong distinguishes this case from a typical cloud service, which the court analogizes as being an extension of the local storage of the device. Still, I'm quite astounded at the direction of the discussion on page 21, and interested to see how the court will draw the contours. I think the "right answer" is to extend 4th amendment protection to documents in the cloud when "the third party has undertaken to keep the documents private" but not, e.g., when it mines those documents for commercial purposes. This is straightforwardly analogous to a safe deposit box, where the bank holds the box, but doesn't open it up and make use of its contents.
- makmanalp 12y ago
  Interesting ... another interpretation I read was that "The United States" is a party to the case and it's their opinion the court is talking about: The court itself is specifying no opinion on the matter.
  - rayiner 12y ago
    That is an issue that should be mentioned, but I wouldn't quite characterize it that way. > The United States concedes that the search incident to arrest exception may not be stretched to cover a search of files accessed remotely—that is, a search of files stored in the cloud. See Brief for United States in No. 13–212, at 43–44. Such a search would be like finding a key in a suspect’s pocket and arguing that it allowed law enforcement to unlock and search a house. But officers searching a phone’s data would not typically know whether the information they are viewing was stored locally at the time of the arrest or has been pulled from the cloud. Slip. Op. at 21. There's two ways to read the first sentence. 1) We will assume for the sake of argument that documents in the cloud are protected, as the government says. 2) Even the government admits that documents in the cloud are protected. Because the Court follows up with its own analogy ("like finding a key in a suspect's pocket"), I think reading (2) is more natural. The Court isn't just restating the Government's opinion, but acknowledging the shared premise, with the implication that the Government must share reasoning that logically flows from that premise.

by PaulAJ 12y ago

rayiner 12y ago

You're right that the discussion on page 21 of the opinion suggests that the Court would find a privacy right in documents held in the cloud. Indeed, the government seemed to have conceded that point! "The United States concedes that the search incident to arrest exception may not be stretched to cover a search of files accessed remotely—that is, a search of files stored in the cloud." Slip. Op. at 21. Incidentally, I strongly suggest that anyone who says "the Court doesn't understand computers" read pages 19-21 of the opinion. It's a very cogent, if layman's description of the technical aspects of the case. However, I don't think the opinion contradicts Smith v. Maryland. There are two aspects to that case: 1) the user has knowingly exposed the phone number to the phone company; 2) the phone company doesn't just have access to the phone number, but actively processes it for billing purposes. I think the second prong distinguishes this case from a typical cloud service, which the court analogizes as being an extension of the local storage of the device. Still, I'm quite astounded at the direction of the discussion on page 21, and interested to see how the court will draw the contours. I think the "right answer" is to extend 4th amendment protection to documents in the cloud when "the third party has undertaken to keep the documents private" but not, e.g., when it mines those documents for commercial purposes. This is straightforwardly analogous to a safe deposit box, where the bank holds the box, but doesn't open it up and make use of its contents.

makmanalp 12y ago
Interesting ... another interpretation I read was that "The United States" is a party to the case and it's their opinion the court is talking about: The court itself is specifying no opinion on the matter.
- rayiner 12y ago
  That is an issue that should be mentioned, but I wouldn't quite characterize it that way. > The United States concedes that the search incident to arrest exception may not be stretched to cover a search of files accessed remotely—that is, a search of files stored in the cloud. See Brief for United States in No. 13–212, at 43–44. Such a search would be like finding a key in a suspect’s pocket and arguing that it allowed law enforcement to unlock and search a house. But officers searching a phone’s data would not typically know whether the information they are viewing was stored locally at the time of the arrest or has been pulled from the cloud. Slip. Op. at 21. There's two ways to read the first sentence. 1) We will assume for the sake of argument that documents in the cloud are protected, as the government says. 2) Even the government admits that documents in the cloud are protected. Because the Court follows up with its own analogy ("like finding a key in a suspect's pocket"), I think reading (2) is more natural. The Court isn't just restating the Government's opinion, but acknowledging the shared premise, with the implication that the Government must share reasoning that logically flows from that premise.