[efitz]

I know this is a crazy idea but just hear me out. What if any government agency at any level were required to get a warrant signed off by a judge, that showed probable cause, before they could get your data from a 3rd party, and what if the 3rd party was required by law to notify you before turning over that data, so that you could get a lawyer and challenge the warrant?

I know, crazy, right? It’s like what if we actually honored the 4th amendment.

[ashwagary]

>What if any government agency at any level were required to get a warrant signed off by a judge, that showed probable cause...

Buy and publish all congress members location data for a long enough period and I think you'll get your wish.

[wnevets]

> 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.

Which part of the 4th amendment is being violated by the government in this case?

[d_sem]

I would say we reinterpret the 18th century definition of "papers". I quite like Alan Kays comment in a talk sometime in the 1980's where he said something of the effect that a blue thought in the 1960's was to realize that paper is just computer memory you can't change.

I think if you try to define what was interpreted by "papers" in a pre-digital context you would conclude it is sufficiently analogous to many things in our modern world. By "papers" they likely meant diaries, personal mail, accounting logs, ship manifests, personal inventories, order histories, receipts for travel. All things which may have been written down on a piece of paper which are now logged on our phones.

If you take an originalist argument that the constitution is static and cannot be reinterpreted/amended you have to first justify why you think amendments like the banning of slavery or women's voting rights amendments are not legitimate in the United States. We certainly have a culture of defining rights which our predecessors did not explicitly call out in the early years of its history. Even male suffrage (non-land owning males) in the late 19th century was a revolutionary step in the definition and expansion of citizens rights.

[Ajedi32]

> If you take an originalist argument that the constitution is static and cannot be reinterpreted/amended you have to first justify why you think amendments like the banning of slavery or women's voting rights amendments are not legitimate in the United States

Holy straw man Batman! What kind of crazy "originalist" believes the constitution can't be amended? There's a literal provision in the constitution for amending the constitution!

Originalism just means you don't use the courts to invent new rights out of thin air, or nullify rights you don't agree with, not that you can't amend the constitution at all. And even by originalist standards I don't think interpreting "papers" to include digital records is a stretch, anymore than interpreting "press" to include blog posts is.

[wnevets]

> I think if you try to define what was interpreted by "papers" in a pre-digital context you would conclude it is sufficiently analogous to many things in our modern world. By "papers" they likely meant diaries, personal mail, accounting logs, ship manifests, personal inventories, order histories, receipts for travel. All things which may have been written down on a piece of paper which are now logged on our phones.

Considering data digital as papers is perfectly reasonable but the government still isn't searching or seizures your papers. They're buying someone elses "papers".

[lukeschlather]

This whole concept that "oh a private company has stolen my papers, well that's not a problem" doesn't seem to reflect a strict textual reading of the 4th amendment.

[wnevets]

But the private company isn't stealing your papers, they're recording their own.

[Retric]

A doctor can hold your papers even if they created them and you’re unaware they exist.

Why wouldn’t this apply to metadata about you? It’s just as much your information as the results of a cholesterol test.

[wnevets]

Do you believe your cholesterol test results are protected by the 4th?

[Retric]

Personally yes though the courts disagree except under HIPPA police need a search warrant to get them.

So culturally we do think they should be even if the legal system disagrees.

[efitz]

Uh, the part where they track people’s location based on cell phone location data purchased without a warrant, for purposes of criminal investigations?

[wnevets]

A person's location or whereabouts isn't mentioned in the 4th amendment.

[efitz]

That would be the “secure in their persons”, and probably “secure in their papers” (the latter has been broadly interpreted by the courts to include electronic information, not just physical papers).

US courts have widely ruled that data a that a third party collects/generates/maintains on a person does not fall under the 4th amendment. Many other western countries have actually decided the opposite, that you have a privacy right in data about you.

Personally I think US interpretation is wrong and inconsistent with the 4th amendment. Congress could easily settle the issue wrt federal law enforcement.

[efitz]

Responding to peer comment.

It’s public information if a law enforcement officer happens to see you in public. It’s not public information if their surveillance is via a 3rd party whose information is not public.

Arguably even if you’re in public, surveillance (looking for you specifically) should require a warrant. We could debate that.

[wnevets]

I'm not a lawyer but why would your location be considered “secure in their persons”? If you show up on a traffic camera somewhere for example they don't need a warrant or anything to find out your location or whereabouts. Your location isn't protected at all.

edit: Example

https://www.bostonglobe.com/metro/2016/08/21/new-mass-gantri...

https://gizmodo.com/e-zpass-is-the-best-tracking-device-that...