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Comment by pstuart | Hacker News Reader

Shouldn't one's personal data be a Fourth Amendment issue?

It’s not your personal data. It’s Google’s log of requests made to and carried out by Google’s servers. It’s not covered by the literal text of the fourth amendment—which, as you correctly paraphrased, applies to one’s own person and property. The fourth amendment was also never understood at the time it was written to apply to third party business records, which is what your search history is. (While we didn’t have search engines in 1789, we had all sorts of commercial businesses, from banks to accountants to merchants, who kept sensitive customer records. Indeed, for at least 400 years, such records have been obtainable in civil suits with just a subpoena.)

I think it would be a good idea to require a warrant in such cases. But it’s not a 4th amendment issue.

I'd go so far as to argue that the 4th amendment ought to be amended to apply to such data. Such customer records may have been sensitive in the past, but they've become far more personal and all encompassing.

If we can’t even pass a law protecting such data—how can we amend the constitution to the same effect?

Amend it so that the state could ignore that part of it too, just like they do with the rest of the 4th amendment?

Yes it ought to. Unfortunately the current logic seems to be (approximately) that by voluntarily using a third party system the data is no longer your personal property.

The obvious issue with this is that (for example) it seems to treat a Google Docs spreadsheet differently than one stored locally. The way the law is currently worded simply isn't sufficient (IMO) now that the internet exists.

A Google doc is bits encoded onto Google’s property (its servers). A local Excel spreadsheet is bits encoded onto my property (my computer). The law treats them differently because they are totally different.

Yes, there is a bunch of fancy technology that makes it look and feel like the two things are the same. But why should a technological illusion trump physical reality? In reality, you can tell where the bits are and who owns the physical thing that the bits are on. The fourth amendment very neatly and cleanly delineates between the two scenarios based on who owns the relevant “papers and effects.”

Hey I completely agree that it's how the law is currently written.

Reflecting a bit more on my Google Docs example (which differs from the original browsing history topic) I believe it was faulty. It would be a bit odd to treat bits I own as not mine simply because they're stored on hardware owned by someone else. In fact on it's face it appears to go against existing precedent that the 4th amendment applies to a rented storage unit.

When it comes to sensitive data like browsing history though, regardless of legal ownership it certainly feels like a form of unreasonable search. I really can't blame the original authors for failing to anticipate the existence of the internet though.

This type of data collection falls under the 3rd party rulings, i.e. your data is not protected by the 4th Amendment once it is given to a 3rd party. Not saying this is a good thing, just that this is the state of 4th Amendment interpretation.

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