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In my view, the state has to ask a court to approve the purpose of each request, based on a reasonable hypothesis about what might be found.

How this seems different is the lack of any limitation on the kind of content that can be turned over. And in my view, that was a mistake on the judge's part for approving such a sweeping request.

For instance if I were accused of committing a crime against X, then I suppose that Google could be asked to turn over e-mails that I wrote about X, but not e-mails about my bicycle. This is how the system prevents the state from going on a hunting and fishing expedition.

How do you propose that works? Someone at Google searches for the information? An algorithm or an actual Google employee? If it is a human being then what about your privacy then?

What if the Jussie and his manager were using codewords to disguise intent? A search algorithm would not be able to recognise that but a human being can easily infer meaning and intent from the context. What then?

There are no easy answers.

Warrants shouldn't be intended to discover evidence, they should be intended to secure evidence that is expected to exist in a particular location.

This distinction wasn't a major concern when the former was impractical.

Because of digital records and search agents, suddenly either is practical.

The intent of privacy law has always been to raise the cost of targeted prosecution. E.g. "We want to charge this person with a crime, let's find a crime."

The state absolutely has a duty to prosecute and hold individuals accountable. And in extraordinary circumstances, may even need to target prosecution.

What is unacceptable in a free society is that the state should have the ability to target anyone for prosecution with no effective bounds in the number of simultaneous times it does so (aka everyone).

The difference between Orwell and a safe democracy is scale.

I'm missing something.

In this case, the state is expecting evidence to exist in the form of incriminating email communication between Smollett and his manager, and possibly additional people. From the public evidence so far, it sure seems like a reasonable expectation! I'm a pretty hardcore civil libertarian, and I'm having a hard time faulting the judge here.

What else do you expect?

I would expect a warrant for just the e-mail exchanges between Smollet and his manager (and perhaps other digital communication methods), not for his entire life.

I hear you, but that doesn't seem like how anything works in our legal system. When warrants are issued for cellphone records, text messages, financial records, etc, they don't have so narrow a scope.

The state has probable cause to believe there is evidence of criminal behavior in your <insert anything here>. Therefore the warrant gives them access to it in order to look for that (previously specified) criminal behavior. In this case everyone expects to find a smoking gun in his email - either talking to his manager or talking to someone else. That seems like probable cause to me.

> In this case, the state is expecting evidence to exist in the form of incriminating email communication between Smollett and his manager, and possibly additional people.

Then why is the warrant not for _that_? Instead, we have a broad-reaching data pull that will be filled with a ton of information is irrelevant.

If you don't have enough evidence to specify the particular thing you are searching for, too bad. That limitation is written into the Constitution.

It is, though that limitation is essentially ignored by the NSA.

If you add all those records together you get a fraction of the information you get from someone's Google history. We're talking records like search history, live GPS data and emails. That is a completely different level of scrutiny.

So the difference is seeing something through a window with curtains vs. having a camera installed in the room. In principle, not so different. In practice there really is no comparison. It is basically a warrant to ruffle through someone's life.

It is basically a warrant to ruffle through someone's life

Which, for what it's worth, is a warrant that is perfectly within the powers of a judge to grant.

It needs to be phrased more specifically, or it will violate the prohibition on general warrants.

"You went 61 in a 60. Here's a ticket. Also, because you broke the law once and I'm in a pedantic mood, I'm issuing a warrant to go through all of your GPS history for the past two years. Oh look, 1 year ago you went 36 in a 35. Another ticket for you. 2 years ago you jaywalked. Another ticket."

At what point do we want the legal system to no longer have the power to scrutinize an individual's history?

I don't believe that a warrant to "ruffle through someone's life" without limits is within the powers of a judge. A warrant to procure relevant evidence to a case being investigated, legally, certainly.

Issuing an order for someone's entire Google history for a year is bordering "an unreasonable search and seizure", by my understanding. Do they have legitimate reason to believe that there is an email containing evidence? Or a document in Google drive? Location data for an entire year - how is this relevant to the case?

It’s not the same thing. He is suing the city of Chicago for “malicious prosecution”. As part of that lawsuit, the city must attempt to show that the prosecution was not malicious.

That’s different than stating that you would like to browse through someone’s history for the purpose of finding crimes where they may not exist.

What? They're collecting evidence post facto to argue whether the previous prosecution was malicious or not?

He's being sued by the city for the costs of the hate crime investigation.

He's counter-suing for malicious prosecution.

Can't wait for an AI that does that after a subpoena. Given these terabytes of personal data, find all infractions. Palantir working on it? </sarcasm>

Also imagine just how much more power law firms on the plaintiff side would have if they want to find something wrong with the defendant's profile. Which, if there is power misuse, like in current society, is bad.

Extrapolating completely outside of the scope of the current case being discussed is not very helpful.

>>is a warrant that is perfectly within the powers of a judge to grant.

Not under the 4th amendment of the US Consitution they don't, they have the power to grant a warrant for a Specific thing to be searched pursuant to probable cause a specific crime has been committed

General Search warrants are and should remain unconstitutional

"If you add all those records together you get a fraction of the information you get from someone's Google history."

With 'Google Home' etc. it changes everything. Door locks, home cameras, audio recordings etc. etc..

Can the argument you had with your wife, totally irrelevant to the case, wherein you got angry and called her a big 'B' be used against you in court as demonstration of your character?

The time is now to be concerned about 'police state'. I think we can mostly have our cake and eat it too. Proportionality matters on all sides.

I met with someone from a privacy focused search engine and a line from his deck stuck with me: “you tell your search engine things you wouldn’t tell your friends or spouse”

The State has not always been able to do that. The idea that a search can be executed merely for the purpose of collecting evidence is a relatively recent development. Records, papers, etc. used to be protected under the Fourth Amendment.

https://en.wikipedia.org/wiki/Mere_evidence_rule

In broad strokes: Originally, the Fourth Amendment only allowed for the seizure of stolen and counterfeit goods, the "fruits of a crime." This was slowly expanded to include the "instrumentalities" of a crime, i.e. the things used in the commission of a crime. The difference between the instrumentalities and mere evidence was always shaky, and eventually crumbled.

It’s different because tech companies have inserted themselves as intermediaries into aspects of our lives that used to be essentially private. Activities such as: reading, dating, talking to friends, exercising, driving, reading a map, cooking, checking the weather, listening to music, watching movies, viewing pornography, getting medical advice, breaking and forming habits, menstruating, learning, sleeping, and many others are now frequently monitored and analyzed “in order to provide and improve the service”. All of this is subject to subpoena.

Edit: A few more: reading a newspaper, turning on a light, making a grocery list, setting the thermostat, going for a walk in the park.

It's way different because big tech cos acquire and retain far more data about individuals than anyone ever expected to be available.

10-ish years ago, it wasn't possible to retroactively subpoena a year of minute-by-minute location history, because unless you had an ankle monitor, that data didn't exist. You couldn't get a letter-by-letter log of every term typed into a search engine or a log of the amount of time spent looking at pages of reference material. You couldn't get a record of every keystroke ever typed into a mail client or word processor. You couldn't get every photograph ever taken by the individual, because cameras didn't automatically send a copy to the mothership. This is way above and beyond standard paper seizure or record demands.

"Write angry letters, but don't send them" used to be good advice, but now that the government can just casually dash off a search warrant to produce every keystroke and every location ping within a year of a suspected crime, we all have good reason to be scared. Why'd you search "marijuana" that day last October? You expect me to believe you were just researching a ballot measure? Pfft.

This makes Big Brother a tangible reality. It certainly feels big to me.

Well you can also view things a different way. It will be a lot harder for real criminals to get away with anything in the future.

Now it becomes scary only if the authorities decide to go amok and make criminals of us all, but assuming it goes this way without anyone pushing back is not too realistic.

Many of the things we consider just and right today were illegal at one point in time but change was eventually made because of people who would have been considered criminals.

Like faking a racially-motivated crime?

First they came for the socialists, and I did not speak out— Because I was not a socialist.

Then they came for the trade unionists, and I did not speak out— Because I was not a trade unionist.

Then they came for the Jews, and I did not speak out— Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

Only a police state can totally stop crime entirely. As the state is more aggressive in prosecuting crimes, it limits human rights more and more.

Just like security and usability are tradeoffs, so is this.

> Only a police state can totally stop crime entirely.

Only if that involves a complete overhaul of the police itself. Currently we have body cams that just fail at convenient times, policemen stalking their ex girlfriends and whistle blowers that get the short end of the stick. Giving the police more and more power is more likely to reach a turning point where it inherently starts to attract the corrupt and power hungry, increasing the abuse well above what we already see.

The police already attracts the corrupt and power hungry. This is just how security services work and why their power needs to be checked and there has to be oversight.

If the system ran amok they would just do whatever they want regardless.

We're already all criminals, with many people inadvertently committing multiple felonies (yes, felonies) every day: https://kottke.org/13/06/you-commit-three-felonies-a-day

This becomes terrifying when you realize the implications for quashing dissent. An inconvenient activist is an easy target for the legal system.

I had the misfortune of looking through your link, finding it to be a waste of time. The "committing three felonies a day" is the title of a book, the Amazon reviews claim it to be extreme hyperbole and just a series of case studies where the process of the law was admittedly abused.

The other anecdote in that link is the story of Joseph P. Nacchio, a CEO who was convicted for cashing out over $50 million in stock when the price was around $40, only for the price to drop all the way to $2 a year later. The NSA involvement was a failed bid by his defense to make it seem like his trading was legitimate.

> a series of case studies where the process of the law was admittedly abused

This is exactly the point. The way the law is written gives prosecutors too much leeway to convict, and if you become a problem in the eyes of the powerful, they can "throw the book at you".

> The other anecdote in that link is the story of Joseph P. Nacchio, a CEO who was convicted for cashing out over $50 million in stock when the price was around $40, only for the price to drop all the way to $2 a year later. The NSA involvement was a failed bid by his defense to make it seem like his trading was legitimate.

You left out how the government canceled their contracts with Qwest after Nacchio refused to give them access to phone records, which impacted the company's health. There were certainly other problems at Qwest, of course, but given the lax prosecution of many others involved in such scandals, it certainly feels like this is an example of this process in action.

Scale.

40, or even 20 years ago, the State might have been able to note a record of phone calls, postal correspondence (look up "postal covers"), some financial purchases, periodicals subscriptions, and with a great deal of effort, some of my travels and movements, mostly limited to specific port entries and exits, and air travel.

But unavailable would have been: dictionary queries, encyclopedia queries, books read, specific magazine articles read, the contents of virtually all conversations, detailed movement and location history, social associations, detailed purchase history, and more.

Today, mobile devices report location to a precision of inches at a frequency of minutes. Any random query of momentary interest can create a permanent record. As a HN submission earlier today notes, simply casually perusing a document -- clicking a link -- can result in having your home raided and all electronic devices confiscated and held for a year: https://news.ycombinator.com/item?id=21992491

The scope and scale of intrusiveness is absolutely unprecedented.

Yes, the State has some rights and powers. It also has a tremendous responsibility, which it increasingly seems to fail to excercise appropriately.

And I say this regardless of specific country or jurisdiction -- the story linked above comes from Germany, and instances readily come to mind from the UK, US, Japan, China, Russia, India, Saudi Arabia, and elsewhere.

The corruption of absolute power is not bounded by culture, constitution, or ideology.

Sorry to go off on one irrelevant point but I feel it is highly important to say this at every opportunity: states don't have rights. It is an absurdity and a mockery of human rights to claim such a concept and legitimize fiefdoms over real people. So called rights in their case would be entitlement to powers for power's sake.

Anyway to get to your main body I agree and note what makes the scale bad ultimately is abuse potential for it. For a fantastic example being able to look up details of everyone but only 500 years or more ago wouldn't be abusable for instance because everyone is long dead and it wouldn't be viable to try to change ownership based on it because it already diverged for several generations. Even if you could backtrace they couldn't be reconciled very effectively.

At a pragmatic level, rights exist for any entity capable of, whether by individual or collective action, claiming and defending them.

The notion of innate human rights is a collective claim on rights. It is not the only mechanism for claims to rights.

States' levels of effective control, and hence, access to rights, vary greatly, from near-absolute to wholly impotent.

This approach is based on rights as a pragmatic reality, not a moral ideal.

Also don't forget the search warrant. I think this is what most closely matches the digital variant.

Google records include every place you've ever been (if you use an Android device), every wifi hotspot you've ever connected to, every website visited, every app executed, every message (text or email) you've sent. It's like having a voice recorder permanently on your shoulder and then having to turn that over to law enforcement.

It's very bad. Text and email should be private, unless it is in the context of the action being pursued. This is just too much data to just turn over willy nilly. Very slippery slope.

>The State has always been able to look up phone records, bank records, land records, criminal records, medical records etc etc as in order to pursue justice and prosecute.

>How is this any different?

The cost of doing those lookups. Both in money and time. Looking up an entire life's history would have taken months if not more, and would involve a lot of legwork, from picking up the phone and making calls, to traveling around neighborhoods or farther. That cost limited the charging/prosecution only to people suspected of, or implicated in crimes. Today you can do that on a whim because you don't like a person or because they are your political/business opponents.

I don't believe it is different. Rather our trust in government has degraded in the last 100 years.

Our internet communications are way more intimate than physical or telephone or bank record searches of the past (which was the scope of the law when these things were legislated). These search and seizure laws have been grandfathered in unreasonably imho. A person's google searches are literally his thoughtstream, they are private expression that doesn't incite anything, and there is no reason why anyone would judge people by their thoughs. Police used to need torture to get this kind of data, it shouldn't be handed to them on a platter. imho it's very different