If you're an originalist (and I'm not saying that I am), data in transmit is not necessarily
protected by that amendment
If your data has left your house, is it really your data, or is it Google's say?
If your data has left your house, is it really your data, or is it Google's say?
If that goes into place, your data immediately becomes subject to these amendments. It does away with some of the legal grey area that surrounds data.
Facebook's social graph, for instance: is the fact that I am friends with someone on Facebook my property, their property, or Facebook's property? Or this conversation we're having on HN: you could argue that we each own our words, but the conversation itself (including contextual replies, quoted text, arguments responded to, etc.) is its own entity that doesn't make sense when individual posts are removed, and that's why HN has a time limit for deleting your posts. What about a crowd shot that has various other people in the background? Is it property of the photographer, the clearly-visible foreground subjects, or anyone who happens to appear in it? Does that mean someone who goes around tourist attractions photobombing people has a right to claim all your family photos?
Questions like these also partly explain why legislators are so reluctant to create law for such things.
In 1789, "papers", being made of actual paper, were in transit for much longer in 1789 and there are absolutely draconian laws against destruction and obstruction of the mail.
For example, 18 USC § 1702, which prohibits "with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same" also doesn't have a carve-out for governmental purposes.
Another question would be: would mail be protected without that law and just by the 4th amendment itself?
Despite what the constitution says, human rights are not self evident, they must in fact be legalized.
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
To elaborate: when using the US Postal Service, only domestic "First Class Mail" and "Priority Mail" (these are different and distinct from standard mail) is protected and requires a probable cause warrant to open and inspect. Other types of mail, as well as all packages shipped through private companies like UPS and FedEx, do not require warrants and can be opened and inspected whenever the post office or UPS/FedEx feel like it. There isn't an expectation of privacy for these packages, and certainly no constitutional protection of it.
"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."
Probably the same way civil asset forfeiture does, somehow precedent became the supreme law of the land as opposed to the constitution.
(3)Sealed mail is mail that under postal laws and regulations is included within a class of mail maintained by the Postal Service for the transmission of letters sealed against inspection...
and
(4)Unsealed mail is mail that under postal laws or regulations is not included within a class of mail maintained by the Postal Service for the transmission of letters sealed against inspection....
https://www.law.cornell.edu/cfr/text/39/233.3
I would guess the justification is that 1) the potential for mischief is much lower with a letter vs. an item and 2) the unsealed categories are usually cheaper (periodicals, etc) and the Post Office should be able to verify that the mailed item really qualifies for the lower rate.
>Sealed mail includes: First-Class Mail; Priority Mail; Priority Mail Express;
Shipped packages ("things") can be (but aren't always) sent as First Class or Priority Mail, and thus would fall under the "sealed" category as well.
OTOH, you can also send normal letters (not periodicals or marketing material) as "standard mail" which would make them unsealed (I don't know why you would do this as opposed to sending it as First Class or Priority, but you can).
Basically, USPS provides a service where, regardless of what you are sending in most cases, you can choose whether or not you want it protected by the 4th amendment. The origins of this "choice" (and why it isn't the standard to always being protected) is where I am more confused. And when talking about parallels to electronic media, I think this is an important point, because if this is the case for physical mail, it also stands to reason that electronic media for some reason might not default to being protected by the 4th amendment, either.
As the text says, those first categories are INTENDED for sealed letters. Things shipped in those ways therefore retain the privacy protections of letters. You can put a (small) rock or whatever in there instead--that's your business--and if you do, the Post Office will never know because they're applying the letter-privacy standard and not looking inside.
The other categories are NOT INTENDED for letters. As a result, they don't get the protection intended for letters. You can, of course, try to send something confidential that way, but if it's exposed, that's on you.
You can put whatever you want in a priority mail envelope, but the size and weight limits are much more suited to a big document than an engine block.
People are just too good at rationalizing and not questioning "the way things are" even in the face of the obvious evidence and become quite upset when the elephant in the room is pointed out.
Just for example, by combining several data points, Skynet can infer that those people are acquainted and add that fact to the corpus about you both. You would never give a retailer a full dump of everyone in your address book, but it's pretty much given they know it.
You only have an expectation of privacy of the contents of the letter. You have no such expectation of anything on the envelope itself (e.g. sender/receiver address). The government contends that it only collects analogous metadata in transit, not the contents of the communication itself (although this is debatable).
The framers couldn’t’ve imagined the internet, and, despite that, what you say on the internet is protected by the first amendment as it is speech. Why would the fourth amendment be any different?
I was arguing that if you want to take an originalist view to the constitution, you’d need to give up your protection of speech online and in many other areas.
Prior to the American Revolution, Franklin had been the postmaster for the British Crown, establishing postal delivery routes throughout the colonies. In the early days, it was only official government communications that passed through the post, and it was “sealed against inspection”.
Later, when the mail could be used by citizens, carriers would regularly read others’ mail along their long routes for entertainment.
Franklin, eager to maintain the sanctity of the mail in a time of political upheaval, developed a set of regulations and affixed locks to postal carriers’ saddle bags. Franklin’s early regulations became part of the basis for privacy law, as did the Fourth Amendment rule about unreasonable searches, which the Framers certainly intended to cover postal mail."
source: https://slate.com/technology/2013/06/nsa-surveillance-why-th...
One doesn't even have to reach into the realms of tech not imagined at the founders time to find useful analogies.
Furthermore the idea that a document written hundreds of years ago can't be reinterpreted in the context of framers intentions and new reality is fundamentally broken.
It means you have to rewrite from scratch every century.
It's possible that with FISA, everything under the so called warrantless wiretap program might be legal -- you just don't have access to prove it is.
I haven't seen the 9-0 Supreme Court decision that says that warrantless wiretapping is illegal. Maybe you can point it out to me?
The point isn't that I disagree with you on what should be legal or illegal, I very much agree with you.
The point is, unless something enters a court of law for ajudication, it's very much in the land of the political.
And there's a lot of darkness surrounding the FISA court, much of which cannot be challenged. Is it legal? It looks like the courts say it is.
https://www.reuters.com/article/us-usa-security-nsa/nsas-pho...
But in other surveillance cases, the supreme court has dismissed the cases.
If the webcam was already transmitting for a Skype call or whatever then you can argue over privacy in transit all you want but first you need the person to knowledgeably consent to starting the transmission.