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Comment by JasonFruit | Hacker News Reader

The fourth amendment doesn't address the case where people voluntarily provide information to a third party which contracts with the government to pass it on. It's indicative of the attitude we should have in the matter, but it's not basis enough for a legitimate Supreme Court opinion — not that that will prevent one being given, mind you. There really does need to be a law preventing government from contracting with private companies to provide confidential information without a warrant.

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How is this not different from asking a phone company for the transcript of a private conversation? Or of asking a bank for account statements? It is the nature of any sufficiently complex economy that private entities will possess extremely intimate knowledge about their customers, knowledge which their customers "voluntarily" provided in the course of business. None of this has any bearing whatsoever on the constraints applied by the 4th amendment, unless we are trying to move toward the interpretation that literally any interaction with the outside world is subject to unlimited surveillance by the state.

This comment above does a good job of explaining how phone calls are different: https://news.ycombinator.com/item?id=29170649

The difference is none of those things are freely available for purchase?

That’s the key here - these companies are already selling this information. The govt is just saying “cool, we’ll buy it too”.

The ruling shouldn't be on the Fourth Amendment but on unenforceable blanket ToS's. It would require a law or another amendment though. Any information collection that is not affirmatively allowed by your actively posting it yourself, or that you allow on each individual instance should be illegal.

The amendment doesn't say "secure from government" or "secure from law enforcement." It just says "secure."

A person cannot sell themselves into slavery. Yet we allow the US government to endorse indentured servitude for immigrant labor, because corporations want indentured servitude.

Nor can a US citizen sign away workplace safety rights, legally. Yet we allow US construction companies to rampantly hire off-the-books undocumented labor so that they can freely ignore workplace safety rights, since no one will exist to make claims against them.

It would have been perfectly reasonable for a court to broadly ban surveillance of individuals by telecom companies back in the 1990s, based on the same principles that those courts have willfully violated on behalf of corporations in the other examples above.

It doesn't bind private persons, but it can certainly be argued that by the government making a purchase, the collection (even if retroactive) is pursuant to government direction through the incentive or interest nexus, and therefore the collection itself should be unconstitutional as soon as the government makes one purchase.

I think you're making the opposite argument from what you hope to. You start off suggesting that the fourth amendment might apply here, but then point out that in every analogous case you can think of, the court has declined to stand up for people wronged by government acting through corporations. What makes you think they would do differently here? More to the point, why do you want the judicial branch to exercise legislative power in this, or any, case?

Let me clarify: I'm not suggesting that precedent and consistency demand one way or the other, I'm saying precedent and consistency only matter until it's a corporation with lots of political donations brought to bear, in which case precedent and consistency cease to matter.

Therefore, arguing precedent and consistency is relatively pointless. My point was an exercise in "anything goes, so make the law fit the argument." That's what Chevron would do.

In other words: What's the desired outcome? That corporations cannot wantonly create mass surveillance any more than the government can. So make the law fit the desired reality: extend the 4th amendment to say that privacy is a basic human right and people cannot contractually sign it away any more than they can contractually sign away themselves into forced labor. A clever judge could outlaw H1 visas in the same ruling and get 2 birds with 1 stone.

I'm sorry to nitpick, but a judge can't outlaw anything. Judges don't make laws. They interpret them, and I can't imagine a court willing to opine with any sort of honesty that the fourth amendment provides the sort of protection you're suggesting. I'm as angry about it as anyone, but I recognize that neither my opinion nor my anger is law, a sentiment which I hope for the courts to share.

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