[anabranch]

You're touching on this but the importance of tangible vs intangible property cannot be understated. In Katz v United States: "Because the Fourth Amendment protects people, rather than places, its reach cannot turn on the presence or absence of a physical intrusion into any given enclosure. " https://supreme.justia.com/cases/federal/us/389/347/

That sets a good precedent but gets destroyed in Smith v Maryland

"Petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and even if he did, his expectation was not "legitimate." First, it is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does, in fact, record it for various legitimate business purposes. And petitioner did not demonstrate an expectation of privacy merely by using his home phone, rather than some other phone, since his conduct, although perhaps calculated to keep the contents of his conversation private, was not calculated to preserve the privacy of the number he dialed. Second, even if petitioner did harbor some subjective expectation of privacy, this expectation was not one that society is prepared to recognize as "reasonable." When petitioner voluntarily conveyed numerical information to the phone company and "exposed" that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information" https://supreme.justia.com/cases/federal/us/442/735/case.htm...

That's where things get fucked up.

Simply because you use a service means that you assume the risk that the company would reveal that information. Privacy is not guaranteed as soon as you use a service - setting the precedence for NSA mass surveillance. Unfortunately, these laws were passed when the fact that everyone you know, interact with, and communicate with is in your pocket all the time.

Different laws for different times...

[whoopdedo]

It's not quite the same as legitimizing the sharing of information by a third-party. By saying it is a "risk" there is the implication that it is outside the contract the customer has with the telephone company. So I think it contradicts itself by first saying he should not have expected privacy then saying the loss of privacy is a risk. If there's no expectation of privacy then where is the risk? There is an expectation but there is also a risk and if the information is divulged (against the customer's wishes) then any further expectation of privacy disappears. This is what happened with those leaked celebrity photos; the initial hacking was illegal, but publishing the photos after the leak was not.

The salient issue the case demonstrates is that if the police read the numbers from his phone directly, that would be an illegal search. But because it was the telephone company that divulged the information, even if that was a breach of privacy, it does not invalidate the use of the information as evidence because although the police received the benefit from the information they were not the ones who breached the privacy. So there was no loss of privacy as far as the fourth amendment is concerned; that only applies to police and not the telephone company. If he has a problem with the them giving the information out he can sue. Except, of course, congress has also given telephone companies immunity.

And as more government work gets outsourced to private contractors there are more avenues by which law enforcement can do this privacy-two-step-tango and collect admissible evidence without warrants. Or, at least, using much easier to obtain warrants. Isn't that what one of the concerns with CISA is? That it lets private company collect information that may be used in court? Do these companies have to obey the fourth amendment?