Hacker News Reader

Comment by caseysoftware | Hacker News Reader

This goes back to Third Party Doctrine.

It's the premise that once you give up data to a third party, you no longer have any "reasonable expectation of privacy" so therefore it's not a search.

There is similar case law backing up searching your garbage can. While it's up against your house (aka still under your control), you have rights to it.. once you put it on the street for the garbage truck to collect, you've surrendered those rights.

I'm NOT saying this is good or what I like - specifically, I hate it - but it's how it currently works under US case law.

Therefore, to change things, we need Congress to write new laws and/or new Amendments. Our opinions of "how it should be done" are irrelevant unless backed by the law.

View on HN

The funny thing is, when it comes to freedom of speech, the courts made the opposite decision with the State Actors doctrine. If the government wants to censor you, they can't reach through a private institution to do it. But the Third Party Doctrine says they can reach through a private institution to search and seize your property.

This is an arbitrary distinction chosen purely by judicial fiat. There was no democratic movement to strengthen 1A and weaken 4A/5A in this manner. Ergo, we shouldn't necessarily have to get Congress involved just to fix this weird inconsistency in caselaw. The courts have an understandable aversion to "legislating from the bench", but if you've already done so, I think it's fine to at least fix obvious mistakes.

I don't think the courts or the companies which hold your personal data consider you to have any property right to that data (beyond the intellectual rights you may have via any copyrights, even if you count those much personal data like your location history or your DNA isn't copyrightable). Imo when the government receives a copy of your personal data from a third party they aren't "taking your property" any more than I would be if I took a photograph of your house.

How do you imagine property rights for personal data to work? Even in places like the EU with stronger rights/protections around personal data they don't try to fit those rights/protections into the existing framework of property rights because they are so different.

We don't have to imagine, we can read their TOS.

We continue to "own" the data, but we've given them a worldwide irrevocable unlimited license to do what they want, limited only by local law.. hence why I put "own" in quotation marks.

Well that is in regard to any copyrighted material you may give them. But for uncopyrightable things like data from a heart rate sensor, or your shopping history on amazon, you can only ever own the physical objects the data is manifested in, not the data itself. And any company will definitely tell you that you have zero property rights over the actual storage devices in the datacenters where your data happens to reside.

There's a major (and important) distinction between the two scenarios.

The State Actors doctrine says that the government can't hire someone to do something on their behalf that they're not allowed to do.

Under the Third Party Doctrine, they aren't searching and seizing your property in this case, as your data is no longer your property since you gave it to that third party already.

If the government was paying Neustar (or whomever) to go acquire this data on their behalf, it would be an issue under current law. But buying something that was handed over willingly* is a different issue.

*the article makes a valid point that many people are unaware they have agreed to hand this data over to a service provider, which is something that should be addressed IMO.

You might not agree with it, but it's not an "obvious mistake" and it's not a "weird inconsistency" in caselaw.

  Under the Third Party Doctrine, they aren't searching and seizing your property in this case, as your data is no longer your property since you gave it to that third party already.

If you have a child in public education, you are forced to use third party tools to communicate, acquire class photos, enroll in sports, etc.

Nothing with data collection is "voluntary". To exist in our society there are so many "private institutions" that essentially wield governmental power.

It will absolutely be our undoing as a country that we cannot see the forest from the trees.

> If you have a child in public education, you are forced to use third party tools to communicate, acquire class photos, enroll in sports, etc.

No, you aren't (at least in my area), but even if you are that's not the government's problem.

> Nothing with data collection is "voluntary". To exist in our society there are so many "private institutions" that essentially wield governmental power.

It is "voluntary". The quotes are there for a reason because it can be highly inconvenient not to "volunteer", but it is possible (at a cost in most cases).

> It will absolutely be our undoing as a country that we cannot see the forest from the trees.

Third party data access will not be our undoing.

For one, it's not that serious of an issue, and we can ultimately change the law if enough people feel strongly enough about it.

  it can be highly inconvenient not to "volunteer"

I guarantee you don't have a child in public education.

Yeah certain information held by third parties is already protected by statute such as video tape rental or sale records, or emails held by a service provider for less than 180 days. There really isn't a reason why congress couldn't expand similar provisions to all or most personal data held by third parties.

https://en.wikipedia.org/wiki/Video_Privacy_Protection_Act https://en.wikipedia.org/wiki/Stored_Communications_Act

I'd wager you could argue that it's not possible to participate in society without internet services, and that it's not possible to use internet services without divulging personal data.

It's practically impossible to avoid giving your information to a 3rd party.

There is a whole subject called Garbology.

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

Yes but I think the courts would instantly shoot down having the NSA collect everyone’s garbage and sift through it for anything incriminating

There's no expectation of privacy for garbage, and no fourth amendment protections for it. That's why dumpster diving remains legal as long as you don't break since other law like trespass in the process.

Reply on news.ycombinator.com