5 ms·

If Smith stands for straw man, then it's even stronger today. From the horses mouth: First, we doubt that people in general entertain any actual expectation o

If Smith stands for straw man, then it's even stronger today. From the horses mouth: First, we doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must "convey" phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. People dial phone numbers, they don't dial cell towers or GPS location data, and there are of course infinitely many other examples. Second, even if petitioner did harbor some subjective expectation that the phone numbers he dialed would remain private, this expectation is not "one that society is prepared to recognize as 'reasonable.' I guess the times they are a changin'.

rayiner 12y ago
Users surely realize that every gmail they send and every Facebook message is both mined for information and also accessible to hundreds of people at these companies. At least, they realize that as much as they ever realized that the phone numbers you dial don't just sit in your phone but have to go out through the wires to the phone company. As for the second part--the test is whether a subjective expectation of privacy is objectively reasonable. That is to say--it's what a reasonable person would expect knowing the facts, not what the average person subjectively believes. It's possible for your average person to have a subjective expectation of privacy that is not objectively reasonable if your average person is confused about the objective facts. Looking at the objective facts: cloud data is mined and processed and accessible to many people at cloud companies, it's hard to say that any subjective belief that cloud data is private is objectively supportable. It might be widely held, though I think that's changing with every news story of iCloud leaks, but that doesn't make it objectively reasonable.
- DanBC 12y ago
  I give my data to Facebook. Facebook tells me what they're going to do with it, and provide me with service in return. This doesn't mean I've given Facebook permission to sell my data to anyone. While Facebook makes extensive use of my data -more than is needed to present a wall to me- that doesn't mean I lose expectations of privacy. I'd want Facebook to fire people who were looking through my photos without operational reason, as one example. Perhaps it's a European thing: Companies should only ask for the data they need; they should only keep it for as long as they need it; they need to protect it against loss. I strongly believe that law enforcement and intelligence agencies should be using validly formed legal documents to get access to cloud (and other) data.
  - derekp7 12y ago
    Let's take a simpler situation. Say you tell me that you were with Bob and Jim out on Mill Road last week. Now if a crime has been committed, and a cop is asking questions door to door if anyone knew where you were and who you were with, do you think that the officer should have a signed warrant for me to disclose to them that you said you were out by Mill Road with Bob and Jim? How would the Facebook situation be any different, other than the fact that they make money off you telling them these things?
    - alexqgb 12y ago
      Strictly speaking they don't "make money off of you telling them these things." They make money from advertising in a well-targeted fashion, which is actually a much more complicated proposition, and one that has far more to do with how much sense they can make of the the data you provide – not just the acquisition of the raw material. Using a more accurate view of their model, it becomes clear that FB is strongly incentivized to keep their raw data to themselves. Failure to do so means risking that someone will not only beat them at their own game, but will do so at their expense. Same goes for Google, etc. So yes, it is perfectly reasonable to share a lot of very personal data with them while expecting that much of it will be carefully protected. After all, the stratospherically high value of their position depends on the inability of others to connect the very fine-grained demographic profiles they create with the specific individuals behind them. Given this reasonable expectation of privacy, it makes more sense to see these third-parties more like doctors, priests, or accountants. Yes, they're all third parties too. But they're ones who we absolutely expect to protect our privacy. Given how deeply established the norms of confidentiality are in cases like these, I fail to understand why we we've acquiesced so readily to the fairly radical standard set in 1979.
    - AnthonyMouse 12y ago
      > Now if a crime has been committed, and a cop is asking questions door to door if anyone knew where you were and who you were with, do you think that the officer should have a signed warrant for me to disclose to them that you said you were out by Mill Road with Bob and Jim? It's important to distinguish between you being allowed to tell them and them being able to compel you to tell them. I see no problem with requiring a warrant for the second one.
- duaneb 12y ago
  > Users surely realize that every gmail they send and every Facebook message is both mined for information and also accessible to hundreds of people at these companies. Well it's not like they ever offered users a choice or educated them....
- Uhhrrr 12y ago
  But it's not just GMail and Facebook stuff, right? The government is collecting everything. Specific sites don't matter.
- barrkel 12y ago
  For a chap interested in the law, you seem to be rather flexible in your perspective. An unlocked door on a house doesn't seem to support an objectively reasonable expectation of security, but that doesn't mean it's any less wrong to open it and burgle the place. And I doubt the fact of an unlocked door or window would be supported as a defence in a burglary case. Data stored with cloud companies are accessible, as though through an open door, for those companies' employees. But that doesn't make it any less wrong for such employees to go trawling for gossip, amateur porn, etc. in such private messages.
  - rayiner 12y ago
    The factual difference is that those companies don't just have the ability to trawl through your data, they actually do it. Imagine you allowed Facebook to send people into your house to take pictures, so they could see what cleaning products and the like you buy and sell that information to advertisers. The government wouldn't need a warrant to subpoena those pictures in Facebook's possession of what's in your house.
  - Silhouette 12y ago
    I think your general argument is a reasonable one if read in isolation. Unfortunately it seems quite possible that rayiner's characterisation of the law is correct, and that the law just happens to be bad and/or anachronistic in this area. In general, I don't think privacy and data protection laws are anything like strong enough in most jurisdictions today, and I think the data mining industries (and governments) are pushing the boundaries of acceptable behaviour as far as they can as fast as they can so they can then claim that their behaviour is normal and accepted and therefore "OK" before those laws catch up. The difficulty is that privacy is something of a Pandora's box situation -- once lost, it is almost impossible to truly restore -- with the added twist that it's mostly important to protect against "it would never happen to me" situations, which means the average person doesn't realise or doesn't care what they're losing until it is too late. I'm afraid the data miners will win (or already have won) and for at least one generation the safeguards that privacy should bring them have been lost for life. Realistically, most people probably won't suffer great hardship as a result. The worst they'll get is some spammy advertising. The people we should worry for are the innocent ones who will nevertheless spend months trying to fix their credit after identity theft, or paying a fortune to accountants when they are investigated for (negligently) suspected tax fraud, or going through a hellish legal process for months to defend themselves against false accusations, or trying to get permission to travel on holiday after being put on some list because something they said was taken out of context, or having their candidacy for public office undermined by character assassination, or in the ultimate worst case who are dead because the SWAT raid/drone strike/other severe and immediate action left them no chance to set the record straight. These are among the reasons privacy and data protection really matter, but to the extent that anyone is really questioning laws and practices today they seem more hung up on Facebook and Google mining data to serve ads.
- talmand 12y ago
  "Users surely realize that every gmail they send and every Facebook message is both mined for information and also accessible to hundreds of people at these companies." You're kidding right? My expectations would be that the vast majority of people who use those services have no idea that is happening. The internet is a device now, just like all the other devices in their home that most people have absolutely no idea how they work, they only know how to use them.
- snowwrestler 12y ago
  But haven't federal courts ruled that the government does need a warrant to access the content of emails? Which would imply that users do have an expectation of privacy. edit: forgot a word
- dredmorbius 12y ago
  Privacy isn't a matter of what's technically possible. It's a matter of what is socially and legally acceptable. I will argue, absolutely, that the present state of exposure given email and other electronic communications is largely unacceptable.
hamiltonkibbe 12y ago
Soon the logic will be: "Before snowden, It would have been reasonable to expect that your information was private, but now any reasonable person using the internet/phone/etc. would assume that the information will be harvested and stored by the government and therefore has no reasonable expectation of privacy, therefore no warrant will ever be required"

rayiner 12y ago

Users surely realize that every gmail they send and every Facebook message is both mined for information and also accessible to hundreds of people at these companies. At least, they realize that as much as they ever realized that the phone numbers you dial don't just sit in your phone but have to go out through the wires to the phone company. As for the second part--the test is whether a subjective expectation of privacy is objectively reasonable. That is to say--it's what a reasonable person would expect knowing the facts, not what the average person subjectively believes. It's possible for your average person to have a subjective expectation of privacy that is not objectively reasonable if your average person is confused about the objective facts. Looking at the objective facts: cloud data is mined and processed and accessible to many people at cloud companies, it's hard to say that any subjective belief that cloud data is private is objectively supportable. It might be widely held, though I think that's changing with every news story of iCloud leaks, but that doesn't make it objectively reasonable.

DanBC 12y ago
I give my data to Facebook. Facebook tells me what they're going to do with it, and provide me with service in return. This doesn't mean I've given Facebook permission to sell my data to anyone. While Facebook makes extensive use of my data -more than is needed to present a wall to me- that doesn't mean I lose expectations of privacy. I'd want Facebook to fire people who were looking through my photos without operational reason, as one example. Perhaps it's a European thing: Companies should only ask for the data they need; they should only keep it for as long as they need it; they need to protect it against loss. I strongly believe that law enforcement and intelligence agencies should be using validly formed legal documents to get access to cloud (and other) data.
- derekp7 12y ago
  Let's take a simpler situation. Say you tell me that you were with Bob and Jim out on Mill Road last week. Now if a crime has been committed, and a cop is asking questions door to door if anyone knew where you were and who you were with, do you think that the officer should have a signed warrant for me to disclose to them that you said you were out by Mill Road with Bob and Jim? How would the Facebook situation be any different, other than the fact that they make money off you telling them these things?
  - alexqgb 12y ago
    Strictly speaking they don't "make money off of you telling them these things." They make money from advertising in a well-targeted fashion, which is actually a much more complicated proposition, and one that has far more to do with how much sense they can make of the the data you provide – not just the acquisition of the raw material. Using a more accurate view of their model, it becomes clear that FB is strongly incentivized to keep their raw data to themselves. Failure to do so means risking that someone will not only beat them at their own game, but will do so at their expense. Same goes for Google, etc. So yes, it is perfectly reasonable to share a lot of very personal data with them while expecting that much of it will be carefully protected. After all, the stratospherically high value of their position depends on the inability of others to connect the very fine-grained demographic profiles they create with the specific individuals behind them. Given this reasonable expectation of privacy, it makes more sense to see these third-parties more like doctors, priests, or accountants. Yes, they're all third parties too. But they're ones who we absolutely expect to protect our privacy. Given how deeply established the norms of confidentiality are in cases like these, I fail to understand why we we've acquiesced so readily to the fairly radical standard set in 1979.
  - AnthonyMouse 12y ago
    > Now if a crime has been committed, and a cop is asking questions door to door if anyone knew where you were and who you were with, do you think that the officer should have a signed warrant for me to disclose to them that you said you were out by Mill Road with Bob and Jim? It's important to distinguish between you being allowed to tell them and them being able to compel you to tell them. I see no problem with requiring a warrant for the second one.
duaneb 12y ago
> Users surely realize that every gmail they send and every Facebook message is both mined for information and also accessible to hundreds of people at these companies. Well it's not like they ever offered users a choice or educated them....
Uhhrrr 12y ago
But it's not just GMail and Facebook stuff, right? The government is collecting everything. Specific sites don't matter.
barrkel 12y ago
For a chap interested in the law, you seem to be rather flexible in your perspective. An unlocked door on a house doesn't seem to support an objectively reasonable expectation of security, but that doesn't mean it's any less wrong to open it and burgle the place. And I doubt the fact of an unlocked door or window would be supported as a defence in a burglary case. Data stored with cloud companies are accessible, as though through an open door, for those companies' employees. But that doesn't make it any less wrong for such employees to go trawling for gossip, amateur porn, etc. in such private messages.
- rayiner 12y ago
  The factual difference is that those companies don't just have the ability to trawl through your data, they actually do it. Imagine you allowed Facebook to send people into your house to take pictures, so they could see what cleaning products and the like you buy and sell that information to advertisers. The government wouldn't need a warrant to subpoena those pictures in Facebook's possession of what's in your house.
- Silhouette 12y ago
  I think your general argument is a reasonable one if read in isolation. Unfortunately it seems quite possible that rayiner's characterisation of the law is correct, and that the law just happens to be bad and/or anachronistic in this area. In general, I don't think privacy and data protection laws are anything like strong enough in most jurisdictions today, and I think the data mining industries (and governments) are pushing the boundaries of acceptable behaviour as far as they can as fast as they can so they can then claim that their behaviour is normal and accepted and therefore "OK" before those laws catch up. The difficulty is that privacy is something of a Pandora's box situation -- once lost, it is almost impossible to truly restore -- with the added twist that it's mostly important to protect against "it would never happen to me" situations, which means the average person doesn't realise or doesn't care what they're losing until it is too late. I'm afraid the data miners will win (or already have won) and for at least one generation the safeguards that privacy should bring them have been lost for life. Realistically, most people probably won't suffer great hardship as a result. The worst they'll get is some spammy advertising. The people we should worry for are the innocent ones who will nevertheless spend months trying to fix their credit after identity theft, or paying a fortune to accountants when they are investigated for (negligently) suspected tax fraud, or going through a hellish legal process for months to defend themselves against false accusations, or trying to get permission to travel on holiday after being put on some list because something they said was taken out of context, or having their candidacy for public office undermined by character assassination, or in the ultimate worst case who are dead because the SWAT raid/drone strike/other severe and immediate action left them no chance to set the record straight. These are among the reasons privacy and data protection really matter, but to the extent that anyone is really questioning laws and practices today they seem more hung up on Facebook and Google mining data to serve ads.
talmand 12y ago
"Users surely realize that every gmail they send and every Facebook message is both mined for information and also accessible to hundreds of people at these companies." You're kidding right? My expectations would be that the vast majority of people who use those services have no idea that is happening. The internet is a device now, just like all the other devices in their home that most people have absolutely no idea how they work, they only know how to use them.
snowwrestler 12y ago
But haven't federal courts ruled that the government does need a warrant to access the content of emails? Which would imply that users do have an expectation of privacy. edit: forgot a word
dredmorbius 12y ago
Privacy isn't a matter of what's technically possible. It's a matter of what is socially and legally acceptable. I will argue, absolutely, that the present state of exposure given email and other electronic communications is largely unacceptable.

hamiltonkibbe 12y ago

Soon the logic will be: "Before snowden, It would have been reasonable to expect that your information was private, but now any reasonable person using the internet/phone/etc. would assume that the information will be harvested and stored by the government and therefore has no reasonable expectation of privacy, therefore no warrant will ever be required"