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Comment by xxpor | Hacker News Reader

I'm not sure it'd be constitutional for congress to ban selling something to a state government if the goods aren't themselves illegal

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Not a lawyer but I think this would be constitutional in the same way that international sanctions are constitutional. The regulation of interstate and foreign commerce is an enumerated power given to congress and usually interpreted pretty broadly.

That's right, but a company in a state selling to a state gov isn't engaging in interstate commerce. Maybe SCOTUS will use the cockamamie "but the market is nationwide so it still affects it" excuse but normally...

Wickard v. Filburn pretty much ended the idea of any real limitations in regards to calling something interstate commerce:

"An Ohio farmer, Roscoe Filburn, was growing wheat to feed animals on his own farm. The US government had established limits on wheat production, based on the acreage owned by a farmer, to stabilize wheat prices and supplies. Filburn grew more than was permitted and so was ordered to pay a penalty. In response, he said that because his wheat was not sold, it could not be regulated as commerce, let alone 'interstate" commerce'..."

Roscoe lost.

https://en.m.wikipedia.org/wiki/Wickard_v._Filburn

> Wickard v. Filburn pretty much ended limitations in regards to interstate commerce.

It did not, illustrated by among others, US v. Lopez.

https://www.oyez.org/cases/1994/93-1260

How would they claim this isn't a economic activity?

> That's right, but a company in a state selling to a state gov isn't engaging in interstate commerce.

A company commercially gathering data that is not exclusively limited to data on in-state activities of in-state residents from (transitively) exclusively in-state sources, and selling it, is engaging in interstate commerce.

If growing your own wheat for your own consumption is under the commerce clause so is every other economic activity

Also make it so selling / giving access to location data without explicit opt-in consent, along with notification to users if their data was accessed / rented / sold / used in a thing that others had access to.. basic transparency should be added as well imho.

that could make some of 'the goods' illegal.

and no I don't think t-mobile's recent email about privacy changes should count as opted in - I know the other users of the plans did not even get such an email also.

ITAR restrictions come to mind but I'm not sure if they're the same. For example, if I were to produce a gyroscope with sufficient accuracy the U.S. government can legally prevent me from selling it to foreign entities. Sure my product has excellent civil uses but it can also be used in weaponry (e.g. missiles). Data may have similar implications but I've never thought about this in depth.

Wouldn't you just do an export ban on that "product"? I'm not a lawyer, but as I understand it there is no constitutional limitation. A relatively recent example[0], although maybe congress/POTUS require extenuating circumstances to get around the constitution?

[0] https://www.fema.gov/fact-sheet/allocation-rule-personal-pro...

Export controls. Interstate commerce. There's plenty of precedent for federal statute regulating international and interstate commerce.

Precedent isn't necessary when that is one of the federal government's few enumerated powers.

I understand you're being pedantic, but that's actually false.

Potentially not if the entity was based only in that state, only collecting data on residents of that state, and only then when those residents were physically located in that state. So basically a situation that would never exist.

Of course it is, it's pretty easy to present it as a process that should require a warrant because of the 4th amendment.

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