[rayiner]

> The 4th protects against search of those effects by the govt. without a warrant. What do you think the computers that store and index those things are doing, without a warrant?

You're pretty conveniently leaving out several important words, and also ignoring the ", and" between the first and second clauses of the amendment.

1) You left out the word "unreasonable" from "search." The 4th amendment doesn't protect against "search of those effects" it protects against "unreasonable" searches thereof.

2) You left out the word "their". The 4th amendment doesn't protect against searches of effects. It protects against searches of your effects. You might reasonably say that a Word document on your hard drive is your effect. It's a little harder to say that a Word document on Google's hard drives is nonetheless your effect. I think it strains the definition of the word "your" to say that Google's records about what you search for, or AT&T's records about who you call are your effects, rather than AT&T's effects, when you didn't generate those records and indeed when those records were never even in your possession.

3) Searches don't necessarily require probable cause. The ", and" separates the two parts of the sentence. Searches must be reasonable, and also for any search that requires a warrant, the warrant must be supported by probable cause.

[ericd]

You're arguing that the mass indexing of everyone's communication between two private parties that are not in public should be considered reasonable? This amendment was made partly as a reaction to large-scale fishing expeditions carried out by the crown, trying to root out dissent. That directly parallels the govt. carrying out a large-scale fishing expedition to root out terrorism.

Lawyers can try to wiggle through the subjective parts in the constitution's language, but the intent seems very clear, given the context. The founders did not want the government violating its citizens privacy except when there was a clear reason to, and then only in limited cases, or in trivial cases of privacy invasion that aren't worth considering. Any violation of that is a violation of the spirit of the amendment, if not strictly the letter of it. The language is very forceful on this, and it's clearly meant to be very inclusive on what is considered protected.

The founders didn't have anything in their world that paralleled telephone conversations or server records, except perhaps letters, which they would consider to be effects. They also didn't have anything to parallel our ability to pull out insights from masses of low-signal data.

When people talk on the phone, they have a reasonable expectation that that call is between them and the other person on the call, with AT&T acting as a dumb pipe between them, doing only as much as necessary to make that service work and count the time and rate for billing purposes. There is also the reasonable expectation that AT&T will do with that data what is necessary to bill you for it, but there is no reasonable expectation that they or the govt. will do deep analysis on it to figure out your social connections, who you like best, your travel patterns, who you might be planning something with, etc.

[rayiner]

The 4th amendment was not a response to British actions designed to root out dissent. It was a response to British actions designed to root out people bypassing customs tariffs.

In talking about intent you're projecting onto the framers a broad conception of "privacy" that they did not have. You can't just ignore the text. If you're arguing something is encompassed by the spirit of the law, there must be some evidence of it in the text. It's not there. The text and the discussion at the time is consistent with a more narrow principle: the sanctity of one's home and person, not some broad overarching principle of privacy that attaches to information even when it's shared with potentially hundreds of third parties (how many engineers at Google have access to your email accounts?)

The framers didn't have phones, but they did have all sorts of stored records. Banking records, ledgers, commercial transaction records, shipping records, etc. You can't just ignore the fact that all these things existed, yet the founders made no mention of protecting information that was routinely and by its nature disclosed to other people.

[pfortuny]

"Seizure" comes to mind, though.

Those data are seized. Either they are 'mine' or they are 'Google's' but they certainly are not 'public'. In any of both cases, it is unreasonable to seizure them (even if what you get is just a copy) arbitrarily.

[rayiner]

But the amendment doesn't talk in terms of "not public." It refers to "their... effects." Words aren't meaningless. To make a case for protection under the 4th, you have to make a case that something is your paper or effect, not Google's, and not just anything that is "not public."

[pfortuny]

You're right. AFAIK I keep ownership of my data when using Google's resources, now that I think of it.