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Comment by rayiner | Hacker News Reader

> The NSA has had dragnet surveillance of most or all of the US internet for some years. If that's not a 4th Amendment violation, then nothing is.

Even assuming that were true, I disagree it would be an archetypal 4th amendment violation. Privacy on the Internet doesn't exist as a matter of fact. Anyone who controls a router between you and your destination can see your Internet traffic. When you try to apply the 4th amendment to the Internet, you're not asking the government not to intrude on an otherwise private space (i.e. the heart of the 4th amendment). You're asking it to indulge a purely legal fiction of privacy.

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The crux of this argument and the propaganda the current administration lawyers have been shilling centers around whether these searches (ie, mass collection of US citizen data) are unreasonable. I reject your argument that searches are reasonable because the internet infrastructure is currently fundamentally flawed; as already concluded in Katz v. United States, an unlawful search occurs when a "reasonable expectation of privacy" is violated. Given your own argument, any and all attempts by end users to obtain privacy, via https or otherwise, constitute an individual reasonably expecting privacy and therefore any information gathered is done so illegally.

The "reasonableness" standard is objective not subjective reasonableness. It's objectively unreasonable to think that your data in say gmail, which is stored in a form accessible to many people you've never met, and is in fact data-mined by the host, is somehow "private."

If I keep an unlocked box full of papers in my neighbors garage, and he sometimes rifles through them looking for something interesting, can I say that box is "private"? Maybe if the box is locked and only I have the key (I.e. Client-side encryption) but not if I send it to him locked but give him the key (I.e. HTTPS). Again, it's not about legal technicality or technical technicality. It's about whether the information is actually "private."

Millimeter wave imaging means any building can be made transparent, and your privacy within that building is a social construct.

And on even number days you will argue the people don't have the right to create unbreakable privacy for themselves, and that a search warrant has to be a guarantee of being able to read what the searcher finds.

I think encryption does get you a reasonable expectation of privacy that protects against warrantless attempts to decrypt the information or coerce you to decrypt it, if you're a U.S. person and your data doesn't cross the border.

If data isn't encrypted, it's simply exposed to too many people for any expectation of privacy to be "reasonable." If the government has a warrant, that has always meant the power to coerce people into opening locks. And the Constitution does not apply to foreigners abroad, and to searches at the border. These are not just legal technicalities, they are well-accepted limitations on the power of a 200+ year old document to override the decisions of a democratically-elected government.

Encryption isn't just a lock, as you no doubt know. It also enables undetectable concealment and deniability.

Also, since keys are trivial to hide and destroy, it's also impossible to prove who thwarted a search.

In other words, the same level of care that it takes to go up against a state actor unconstrained by the law would easily thwart a supposedly legal warrant.

State power isn't absolute, and states will have to get used to that.

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