We need a Supreme Court ruling or law that says if the government doesn’t have a warrant to collect your data, they also can’t buy it from third parties.
We also need privacy protections so these companies wouldn’t exist in the first place.
Not a Supreme Court ruling: if there's no law outlawing it, there's no basis for them to rule against it. Do you really want five unelected, unaccountable lawyers deciding this matter?
"Amendment IV: 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."
But, nothing is being searched or seized here; it seems like people gave up their personal data, ignored or didn't read a ToS, and companies are selling it - not being forced to give it up. I don't like it, but does it mean it's illegal?
The government purchasing this data is tantamount to a search. There's quite a bit of precedent on this, much of which was needed after telephones became ubiquitous. Just because the electrical signals carrying a private conversation pass through wires that are owned by a third party does not make the conversation public. Similarly, just because internet traffic is observable by anyone with a network tap does not mean that the government can passively collect this data "just in case". Purchasing the data from a third party does not magically absolve the government of its Constitutional duty to first obtain a warrant for the data.
> Just because the electrical signals carrying a private conversation pass through wires that are owned by a third party does not make the conversation public
Without data protection laws that data isn't your private data, that data is the company's data. And you are free to do whatever you want with your data, and since the company owns this data the company can sell it to the government, it doesn't matter if you consider it to be your private data the company still owns it. Europe has GDPR which clarifies this, the data is yours even if it is stored on company servers, I'm not aware of USA having anything similar except for health data.
So to me it sounds like you'd want USA to create something akin to GDPR.
We have laws, though. The Fourth Amendment is a law, and it's reasonable to say that purchasing what is (arguably) the company's data is still tantamount to a search of our "effects".
Or maybe it's not, and we need new legislation specifically targeting this. That's where the Supreme Court comes in: their raison d'être is to resolve ambiguities in existing law.
> The Fourth Amendment is a law, and it's reasonable to say that purchasing what is (arguably) the company's data is still tantamount to a search of our "effects".
Got any precedents for this? All examples given in this thread was about the government forcing companies to hand over data, not companies just plain selling it to the government. These companies are already selling this data to other companies, like credit score companies gets a lot of data from banks, so to them selling it to the government as well is just another buyer. Does the fourth amendment really apply to cases like this? My hunch is that it does not, and you wont find any such cases since it is so clear that it doesn't apply that it hasn't even reached a court.
I don't. My point is just that the Supreme Court can set a precedent, so it's possible that if the case were brought to them they might decide that it's covered under the Fourth Amendment (or something similar) without needing additional legislation.
I think this could win with a supreme court with judges who have a looser interpretation of the constitution, which right now is not the supreme court we have. The majority of the justices right now have a stricter interpretation and would not see government buying data as "search and seizure."
The better solution would be to have laws legislated. However, unfortunately, there is so much gridlock because congress members are just chasing after Ws for their respective parties and minimizing Ls.
I don't see any reasonable way they could find a way to expand the Fourth Amendment to cover this without it also covering things like the government using information given to them by informants and witnesses without a warrant.
1. The data is not yours. It’s the company’s
2. The government is not “search or seizing” the data, they are purchasing it or a license to it. 3. The company is selling it voluntarily, the government is not compelling it.
Not really. It’s the service’s papers and effects, which happen to contain information about you.
There’s obviously something very wrong here, but it’s a dead end to say no one can sell the government info about people. Need a different approach in the vein of outlawing crazy TOSs, keeping user ownership of their data even if used to make a service operate, right to be forgotten, etc.
As far as I know, a warrant is required to tap a landline phone. I don't see how the principle behind that (reasonable) interpretation of the 4th amendment would not also apply to any kind of data (or metadata) from Internet traffic. Just because some 3rd party collected what is, by legal precedent, clearly considered personal effects and papers does not mean that 3rd party can grant absolution to the government in its need for a warrant to obtain that same data.
Telephones actually have a specific exemption to what’s called Third Party Doctrine: the government’s right to acquire information sans warrant when that information is lawfully held by a third party.
Telcos are exempt for exactly the reason you mention: phones are really important to daily life and they collect tons of sensitive data as a side effect of normal use.
IMO this is one of the more viable routes to getting this behavior changed: expand Third Party Doctrine exemptions to a lot more services, but to do that we’d have to confront just how much data we’re choosing to share, and whether we’re actually choosing to share it.
The fourth amendment doesn't address the case where people voluntarily provide information to a third party which contracts with the government to pass it on. It's indicative of the attitude we should have in the matter, but it's not basis enough for a legitimate Supreme Court opinion — not that that will prevent one being given, mind you. There really does need to be a law preventing government from contracting with private companies to provide confidential information without a warrant.
How is this not different from asking a phone company for the transcript of a private conversation? Or of asking a bank for account statements? It is the nature of any sufficiently complex economy that private entities will possess extremely intimate knowledge about their customers, knowledge which their customers "voluntarily" provided in the course of business. None of this has any bearing whatsoever on the constraints applied by the 4th amendment, unless we are trying to move toward the interpretation that literally any interaction with the outside world is subject to unlimited surveillance by the state.
The ruling shouldn't be on the Fourth Amendment but on unenforceable blanket ToS's. It would require a law or another amendment though. Any information collection that is not affirmatively allowed by your actively posting it yourself, or that you allow on each individual instance should be illegal.
The amendment doesn't say "secure from government" or "secure from law enforcement." It just says "secure."
A person cannot sell themselves into slavery. Yet we allow the US government to endorse indentured servitude for immigrant labor, because corporations want indentured servitude.
Nor can a US citizen sign away workplace safety rights, legally. Yet we allow US construction companies to rampantly hire off-the-books undocumented labor so that they can freely ignore workplace safety rights, since no one will exist to make claims against them.
It would have been perfectly reasonable for a court to broadly ban surveillance of individuals by telecom companies back in the 1990s, based on the same principles that those courts have willfully violated on behalf of corporations in the other examples above.
I think you're making the opposite argument from what you hope to. You start off suggesting that the fourth amendment might apply here, but then point out that in every analogous case you can think of, the court has declined to stand up for people wronged by government acting through corporations. What makes you think they would do differently here? More to the point, why do you want the judicial branch to exercise legislative power in this, or any, case?
Let me clarify: I'm not suggesting that precedent and consistency demand one way or the other, I'm saying precedent and consistency only matter until it's a corporation with lots of political donations brought to bear, in which case precedent and consistency cease to matter.
Therefore, arguing precedent and consistency is relatively pointless. My point was an exercise in "anything goes, so make the law fit the argument." That's what Chevron would do.
In other words: What's the desired outcome? That corporations cannot wantonly create mass surveillance any more than the government can. So make the law fit the desired reality: extend the 4th amendment to say that privacy is a basic human right and people cannot contractually sign it away any more than they can contractually sign away themselves into forced labor. A clever judge could outlaw H1 visas in the same ruling and get 2 birds with 1 stone.
I'm sorry to nitpick, but a judge can't outlaw anything. Judges don't make laws. They interpret them, and I can't imagine a court willing to opine with any sort of honesty that the fourth amendment provides the sort of protection you're suggesting. I'm as angry about it as anyone, but I recognize that neither my opinion nor my anger is law, a sentiment which I hope for the courts to share.
It doesn't bind private persons, but it can certainly be argued that by the government making a purchase, the collection (even if retroactive) is pursuant to government direction through the incentive or interest nexus, and therefore the collection itself should be unconstitutional as soon as the government makes one purchase.
The judiciary doesn't just rule on the constitutionality of laws (actions by the legislature) but also actions by the executive, for example vaccine mandates.
Sure, but the CIA has existed since 1947- if it were illegal for them to gather information on citizens from companies who willingly give it up (for free or for sale), it would've already been decided and would apply to today's data.
But they do. Private companies have killed people with ill-made products [1], pollute our air and water [2], have purposely targeted people for harassment [3], and created drugs solely for addiction [4]. These examples only took 30 seconds of thought.
The idea that businesses (whether public or private) can't hurt me or my family is absurd.
Like literally, the amount of instances where the government is weighing life/death is very small, even smaller at the federal level (most death penalty cases are against state laws). If you're meaning in the 'government programs can greatly affect my quality of life', then private companies can totally do that too - through targeted advertising.
That the government has power over you at all is what matters, not how often it exercises that power against you. Already parallel case construction is a troubling problem (given the warrantless domestic surveillance). Grant the government access to surveillance capitalism / ad tech, and now you've got another vector to launder evidence.
Like literally, that is the basis for state power - several iterations of "...or else" finally end with "we kill you". Private companies don't enjoy that privilege - because they don't have the power to distinguish murder from justifiable homicide.
Slightly less broadly, a monopoly on "legitimate" violence not limited to self-defense or a proportional, reciprocal response to prior violence.
If the state actually managed to monopolize all violence that would be much better than what we have in practice, with plenty of non-state violence in addition to that instigated by the state, though calling any aggressive use of violence "legitimate" would remain a travesty.
There is a solution - individually act in a way to limit what is collected. Take charge of the tracking devices you own, and of your spend.
For extra credit, seed with bad data or misdirection.
Statistically zero people make any effort, other than maybe saying the government should limit government data mining. Here is an idea, turn off mobile phone location tracking this weekend.
>Statistically zero people make any effort, other than maybe saying the government should limit government data mining. Here is an idea, turn off mobile phone location tracking this weekend.
What, exactly, do you mean by "mobile phone location tracking"?
Your phone provider needs to be able to locate your device to provide voice and data services. You'd need to remove your battery to disable that "phone location tracking." In which case, it's just a lump of glass and plastic. Which might make a good paperweight.
As for "location services" and GPS, I never turn those on.
As I said, the data shouldn't be collected -- at all. That's a regulatory issue, not a technical one.
We can't rely on SCOTUS to make this ruling for another 50+ years, so our best hope is to start with state legislators. The majority of law enforcement happens at a state level, and most state legislators aren't as hamstrung as the federal one is, so this is the easiest way to achieve the most impactful results.
Also, POTUS is in charge of most federal law enforcement agencies. So it might be possible to handle this at a federal level through an executive order. Obviously, this doesn't have the staying power of a proper law, but it's something.
Judiciary doesn’t make laws. Every controversial ruling that people worry the SCOTUS could be permanently solved by passing a law or amending the constitution. But if that happens then lawmakers no longer have the talking point to use when running for re-election every 2/6 years so both parties they a shared incentive to keep the status quo.
If you don’t put it into law/constitution then a new set of justices could reverse the ruling in the future.
> Kavanaugh and especially Gorsuch are two you want on the court in this case.
What makes you say that? From what I can tell, Gorsuch doesn't seem keen on limiting law enforcement powers at all. Kavanaugh is a bit of a wild card, but I'd be curious to hear times when he's agreed on limited police powers.
> The new rule the Court seems to formulate puts needed, reasonable, accepted, lawful, and congressionally authorized criminal investigations at serious risk in serious cases, often when law enforcement seeks to prevent the threat of violent crimes. And it places undue restrictions on the lawful and necessary enforcement powers exercised not only by the Federal Government, but also by law enforcement in every State and locality throughout the Nation.
We just need members of Congress to have embarrassing info or evidence of criminality exposed by data broker collection. Then they'll seal everything up like with video rental records.
Feels like it would be more airtight to amend the Constitution. Why hope that precedence falls a certain way instead of removing any ambiguity from the law?
The last amendment to the US constitution that was proposed and then ratified came in 1971. With bipartisanship being what it is today, do you think there’s any chance of pushing another one through at this point in time? The bar is high, and American politicians are loathe to give any opponents perceived wins, even if it’s regarding overwhelmingly popular policies.
Sure, you’re probably right that it’d be more airtight. It’d also mean an almost herculean effort. It’s probably best to explore other options as well.
Between 1971-72 there were 2,500 politically motivated domestic bombings in the US. Partisanship now, as bad as it is, doesn’t come close to that level of violence.
That maybe more because getting away with bombing was easier then than now?.
While there was issues that got escalated in the past - there was literally civil war over one, the data shows that amount of legislation passed has slowed down considerably recently.
I'd agree that the 4th Amendment ought to cover it.
It isn't unambiguous, though. It isn't hard to see how a lawyer could point out that "and to forever secure the people, their persons, houses, papers, and effects, against all unreasonable searches and seizures under the guise of law" says nothing about purchasing data from a 3rd party. This wasn't really something that would have come up in the 18th century.
Extending the letter to match the spirit is why reflection is built into the runtime of the current constitution.
And furthermore can they reverse the order of said invasive search and payment through a wink-wink arrangement? I think the case is pretty strong against the government here. The EFF should bring a suit.
The intentions that 3rd party has changed, but having a PI follow a suspect, or coercing (with money or threats) a CI to provide information predates computers and the Internet and probably the Industrial Revolution as a police tactic by a huge margin.
Purchasing "data" from a 3rd party is a modern Internet spin, but it's not like the concept is brand new to the law or the legal department.
I don't necessarily believe a Constitutional amendment is necessary, since this would be a law limiting government reach, not extending it.
In all likelihood, the amendments text would look something like:
> Section 1: The fourth article of amendment to the Constitution of the United States is hereby extended to include information or detail held, owned, or otherwise under the custody of those other than the accused.
> Section 2: The Congress shall have power to enforce this article by appropriate legislation.
Which then necessitates some accompanying legislation to further clarify. But I'm pretty confident we can get there through legislation alone.
Third party doctrine has been decided on a case by case basis with respect to the type of data provided. Recently the SCOTUS has been pushing back on this, in particularly around automatic data sharing intrinsic to the operation of a device, such as cell phone location records.
However, no one has gone as far as Utah in requiring warrants.
If I hire a hitman who murders you, I will be guilty of first-degree murder. Our legal doctrine is sophisticated enough to handle this kind of first-order misdirection.
If SCOTUS outlawed buying the data, they’d just find ways around that too. Maybe they’d just start creating apps and directly monitoring people. With an unlimited marketing and development budget, they could wind up on the majority of Americans’ phones pretty fast. Depending on the kinds of apps they created, they might get warrantless access to millions of bank accounts, text messages, emails, video conferences, full real-time location tracking, and more.
Startup idea: Buy dirt on your enemies and donate it to the treasury - with just a press of a button! Now they aren't buying it anymore so all should be well.
You'd get industry screaming bloody murder faster than you can say 'Uncle Sam'. See why the NWS/NOAA are restricted in the weather products they can offer, and why a simplified tax filing option has been so long in coming.
Oh I don’t think anyone would know about the government being behind it. They could do it through front companies. The government already does all kinds of other activities through front companies.
Warrantless access to all of those things is basically the definition of an unreasonable search and seizure. It is prima facie prohibited by the 4th amendment. There is no "way around" it.
Why? I understand the subject is unpleasant but I don't see anything that remotely qualifies as legal over reach.
Users must sign a consent statement to a terms of services agreement. That is a voluntary action where users erode their own privacy protections and surrender their contributions. Anything that happens later is completely incidental and solely between the data owner (which is not the user) and the third party.
Irrelevant to the 4th amendment. A service's TOS does not absolve the government of its constitutional prohibition against unreasonable search and seizure. Buying data from a 3rd party service is still a search and seizure, much like paying a hitman is still first-degree murder. The question is whether it is reasonable.
Social media is not the third party once you surrender your data to them. You, the user/product, become the third party in any forthcoming transactions. The only legal challenge therein are details related to exposure of bulk PII which remain protected without regard for the fourth amendment by other laws.
This has been the case for decades. I remember before the internet publishers selling their users subscription and preference data to solicitors. People don’t gain new privacy protections where they never existed prior, especially if the absence of expectations is explicit and agreed upon by the user.
I’m confused. Aren’t we talking about the 4th amendment here? The implied “right to privacy” is only in relation to the government. To me, this means there is a categorical difference between random third parties buying data about you, and the government buying data about you.
No. The fourth amendment does not apply here. In US legal doctrine there is no right to privacy. The fourth amendment exists to provide a right against improper search and seizure.
The Third-Party Doctrine is about the ability to compel third parties to turn over information they hold on others. They don't need to resort to that when they can just buy the data on the open market.
The requirement of a subpoena doesn't prevent the government from taking actions that private actors could legally do, it compels private actors to act according to state whims.
If someone volunteers information, it is not a "circumvention" of the subpoena.
Breaking into Google and stealing information for a criminal investigation would be circumventing it.
Because search is the scope of our discussion, the answer is that the government can read your wife's book for the same reasons they can read your book.
Is one suggesting not detailing our crimes in any recorded format and making it public if we do not want said recordings to be part of a government investigation?
No... Government asks nicely, and business decides whether being a known narc will kill their business prospects, then either hand over the data, or ask the Government to pretty please get a warrant so they have an excuse.
And it's still a violation of the 4th amendment. Now, whether the fact that the violation occurred is surfaced in court, and successfully used to exonerate a defendant, is where the problems occur.
It is not a violation. Third Party Doctrine. You waive 4th Amendment once you share something with someone else. This is the same legal phenomena that pretty much guarantees LE will get access to card based financial activity, and telephone metadata.
They'll need a warrant for a wiretap, but tracing contact graph has been open season for as long as I've been around.
No, it is more nuanced than that and depends on the nature of the information. Banks hold massive amounts of highly personal information about their customers, and this knowledge is an unavoidable consequence of the business relationship. I think most people would agree that the government needs a warrant to obtain this information, even if the bank was willing to sell it anyway.
> I think most people would agree that the government needs a warrant to obtain this information, even if the bank was willing to sell it anyway.
I don't think it is legal for banks to sell their balance information to other private entities either. But if it were, then I think it would be permissible for the government to be one of the buyers.
Your interpretation of 4A is not backed by any legal precedent.
> there is a deep body of legal precedent interpreting 4A
I don't think there's any landmark decision contrary to the interpretation of 4A that I'm putting forth.
As it stands now, the interpretation I am putting forth is the one the government abides by - it can buy data from brokers without warrant if there is no compulsion.
> I don't think there's any landmark decision contrary to the interpretation of 4A that I'm putting forth.
There are tons of case law that have interpreted 4A out to it's currently upheld boundaries - boundaries that aren't well represented by the original wording.
> the interpretation I am putting forth is the one the government abides by - it can buy data from brokers without warrant if there is no compulsion.
You can believe that if you choose. It is curious tho, why you feel a compulsion to keep roping compulsion into it.
> You can believe that if you choose. It is curious tho, why you feel a compulsion to keep roping compulsion into it.
Because that is where the current boundaries are at? That is the DHS/DOJs interpretation of 4A, and so far there has not been any successful court challenge of it.
>> Unlike private actors, governmental actors are publicly constrained in their actions and representatives of the will of our society.
Are you aware of the term 'unelected bureaucrat', and do you know how many of them exist? They are accountable to no one. They continually prove to be significant problems.
My major concern with this is the accuracy of the information. I regularly put in dodgy data on registration forms where there is no financial contract. This puts me at risk of being held to that information. Because it's on the computer, it must be right.
But why? I would like to be able to text my wife while she’s at work. Shouldn’t I be free to do that without sacrificing my right to privacy? Or should we just keep technology the same as it was in the 18th century?
Please take a closer look at the article. Directly collecting texts do not appear to be the type of data involved. If they were included in any way, it would be the result of users granting apps access to them.
Also please note-- and I should have made this note in my original post-- I'm. It saying people can avoid data acquisition by 3rd parties. Merely that users frequently give away far, far more than they have to: whenever they install an app that asks for more permission than necessary to function. Whenever they agree to the popup in browsers that as for access to location data or to receive notifications from the site. (I say something about cookies and JavaScript, but many sites are useless without JavaScript and navigating the dark patterns for those sites that allow cookie preferences is ridiculous. A good ad blocker will at least catch some of that though./
We also need privacy protections so these companies wouldn’t exist in the first place.