[bwaldrep]

From US v Miller as cited in Smith v Maryland:

"The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. . . . This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed."

US v Miller: http://scholar.google.com/scholar_case?case=1505272929564347...

Smith v Maryland: http://scholar.google.com/scholar_case?case=3033726127475530...

[repsilat]

I guess that makes sense again -- I don't have a problem with them "obtaining" the data, and a voluntary disclosure certainly shouldn't be called a "search". If the government asks for the data and the telco willingly complies with the request then I don't think the government has done anything that should be illegal (though it's not very nice of them.)

Two caveats, though: Even if the government is in the clear for obtaining the data, I'm not so sure the telco has a (moral) leg to stand on. We should consider making the distribution of that information illegal, if it isn't already. I have no idea if this would make the government's request "incitement", though I guess the answer might lie somewhere around the civil/criminal distinction. I'm clearly not a lawyer, so I can't really pretend to understand the likely forms or consequences of any of this...

The second caveat is that if the government compels the telco to hand the data over then it's a completely different ball game. That is a (plain-language) search, and it would be disappointing if that weren't subject to Fourth Amendment protections.