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Comment by freejazz | Hacker News Reader

>So because the lawsuit pertains to copyright, we can ignore possible constitutional issues because it'll make things take longer?

What constitutional issues do you believe are present?

> There is no requirement for a lawyer to be utilized.

Corporations must be represented by an attorney, by law. So that's not true outright. Second, if someone did file something pro-se, they might get a little leeway. But the business isn't represented pro-se, so why on earth would the judge apply a lower standard appropriate for a pro-se party so a sophisticated law firm, easily one of the largest and best in the country?

When you are struggling to reason around really straightforward issues like that, it does not leave me with confidence about your other judgments regarding the issues present here.

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I read the ruling(judgment?) first and the fine article second. If I'd just read the article I'd be more confused than this guy.

The PDF is easy to read and really lucid once you get past the formatting. Ars should have just converted it to markdown.

Tech coverage of legal stuff is terrible. Ars has zero interest in representing this story in a fair way. They are making controversy for page views.

> What constitutional issues do you believe are present?

4th Amendment (Search and Seizure)

Do you think the 4th amendment enjoins courts from requiring the preservation of records as part of discovery? The court is just requiring OpenAI to maintain records it already maintains and segregate them. Even if one thinks that _is_ a government seizure, which it isn't---See Burdeau v. McDowell, 256 U.S. 465 (1921); cf. Walter v. United States, 447 U.S. 649, 656 (1980) (discussing the "state agency" requirement)---no search or seizure has even occurred. There's no reasonable expectation of privacy in the records you're sending to OpenAI (you know OpenAI has them!!; See, e.g., Smith v. Maryland, 442 U.S. 735 (1979)) and you don't have any possessory interest in the records. See, e.g., United States v. Jacobsen, 466 U.S. 109 (1984).

This would help explain why entities with a “zero data retention” agreement are “not affected,” then, per OpenAI’s statement at the time? Because records aren’t created for those queries in the first place, so there’s nothing to retain?

AIUI Because if you have a zero data retention agreement you are necessarily not in the class of records at issue (since enterprise customers records are not affected, again AIUI per platinffs' original motion which might be because they don't think they're relevant for market harm or something).

So I think that this is more so an artefact of the parameters than an outcome of some mechanism of law.

> There's no reasonable expectation of privacy in the records

There is a reasonable expectation that deleted and anonymous chats would not be indefinitely retained.

> The court is just requiring OpenAI to maintain records it already maintains and segregate them.

Incorrect. The court is requiring OpenAI to maintain records it would have not maintained otherwise.

That is the crux of this entire thing.

> The court is requiring OpenAI to maintain records it would have not maintained otherwise.

Not quite. The court is requiring OpenAPI to maintain records longer than it would otherwise retain them. It's not making them maintain records that they never would have created in the first place (like if a customer of theirs has a zero-retention agreement in place).

Legal holds are a thing; you're not going to successfully argue against them on 4A grounds. This might seem like an overly broad legal hold, though, but I'm not sure if there are any rules that prevent that sort of thing.

> This might seem like an overly broad legal hold

Exactly

Litigation holds do not violate the 4th amendment.

How?

the government is not involved at all in this dispute, neither state or federal.

So the parties are just like duking it out in a parking lot or something? If the government is not involved, then why does OpenAI even bother listening to the judge?

This only demonstrates that you do not understand the difference between the executive and judicial branches. It does not demonstrate a good point.

How so? The comment I was responding to made no such distinction - it merely claimed "the government is not involved". In the US, "government" is generally taken to be anybody acting under the banner of nation/state authority (contrast with say the UK). So the government is most certainly involved here - adjudicating the case and issuing this retention order.

(for example, your own comment: the executive and judicial branches [of government])

> How so? The comment I was responding to made no such distinction

Should I mention that water is wet every time I mention water? The executive is the executive, the judicial is the judicial. It's inherent in the discussion and pretending otherwise only for the benefit of furthering obtuse points that go nowhere serves the benefit of no one. So you either didn't know, and do now, or you're just cratering the discussion.

I made an obtuse reply to an obtuse wrong assertion. You then baselessly claimed I didn't know about different branches of government. That second bit is what tends to crater conversations.

The distinction of the judiciary is most certainly relevant to the actual legal analysis here - the judiciary often reserves sweeping authoritarian powers for themselves, even when they do act to restrain the legislative/executive. So without even really analyzing the details, I am pretty sure that the law as written supports this action.

But the comment I was responding to wasn't making a larger more nuanced argument - rather it said that the government was not involved, defining away the actions of the judiciary as somehow not being governmental action, regardless of them being done with the authority of government.

The overall analysis is that if people are up in arms about this, it just reinforces the need for some actual privacy laws in this country - both to protect from corporations themselves abusing our data, and in this case to prevent the government from creating overly broad judicial orders that may only target specific companies but end up running roughshod over many individuals' rights.

(and just to be clear to avoid going off into the terminology weeds again: the definition of rights I'm using is the one of imagined natural rights, not merely what has been codified into law)

So what? The poster was obviously referring to the executive so pretending like there was any ambiguity was ridiculous

It's either ambiguous or a logical fallacy - the original concern is about government overreach in general, so it cannot be dismissed by focusing on the executive when it's obviously not the executive acting.

The commenter I responded to is an attorney who presumably just tried to cut out having to detail a longer argument based on the actual nuances that have been interpreted from the 4th amendment. Still, the argument bit off too much so in the interest of deeper analysis and rational discussion it seemed worth calling out.

It's a legal dispute. The role the "government" plays in a legal dispute is very clear. You're being obnoxiously pedantic.

The topic's entire complaint is of people not liking a government action, arrived at by government policy. You made a comment that the "government is not involved". Reading your other comments in this thread, it seems as if your point is to brush aside people's concerns as if they are nonsensical. But that simplistic statement is obviously false, because we are talking about a government order. My comments only seem pedantic because I've had to tediously spell out the details in response to your argumentative wriggling instead of you just accepting that your simplistic statement was wrong.

If you want to pretend to not understand the difference between the different branches of gov't that's fine. I'm sure there is a childrens' playground where you can have a similar level of nuanced discussion, as to your liking.

> government order

They aren't called "government orders" they are called "court orders".

Give me a break with this nonsense alreayd.

Do you have a constructive point you would like to make with this distinction? You keep coming back to this, making it a point to insult me, but then don't really go anywhere with it.

This is Hacker News - we readily jump between levels of abstraction. I've acknowledged that the executive and judicial are separate branches are government, but my argument zooms out a level and treats them as both part of the larger government. Because when people feel their right to privacy is being violated by the government, it doesn't really depend on which branch is causing it!

It seems to me you want to hold to the distinction between the two so perhaps you can paint the action under discussion as if it's the result of something that could not just be changed? But obviously this capability of the judiciary could be restrained by Congress, the same as actions by the executive.

The point is that the conversation was perfectly parsable and your repeated misunderstanding brings nothing to it. I made that point several posts ago but for some reason you keep responding to me and I do not understand why.

> but my argument zooms out a level and treats them as both part of the larger government

Okay? I'm not going to argue against your obtuse misunderstanding or recharacterization of the problem. No one was referring to the government that way, so pretending like they were "for the sake of argument" furthers nothing.

I'm not misunderstanding. I told you what the problem was three comments back - if the word "government" is only referring to the executive branch, then dismissing the concern is a logical fallacy - the desire to be free from unreasonable searches applies to the judiciary as well as the executive. You just ignored the point in favor of calling me names instead.

> the desire to be free from unreasonable searches applies to the judiciary as well as the executive.

Discovery is not a search. There's no point to having this discussion when you keep pushing these obtuse misunderstandings of words that have particular meanings in these contexts. No less so when you insist you do understand that you are pushing different meanings of the words than what are being discussed.

It certainly seems like something is being searched through! We're right back to where we started, with you wanting to rule out people's legitimate concerns by defining terms narrowly and then asserting the concerns make no sense under your definitions. Sorry, communication does not work that way. I fed your trolling for far too long. Bye.

Search is a specific term with specific meaning that is not "anything that is getting searched through"

> We're right back to where we started, with you wanting to rule out people's legitimate concerns by defining terms narrowly and then asserting the concerns make no sense under your definitions.

It's not a legitimate concern. It is a misunderstanding based on ignorance. So funny how we got here again. Looking forward to your next post where you tell me actually you did understand, you were just trying to make a completely different point.

> Sorry, communication does not work that way

The law does. You don't go to court and call that a search. It's discovery. Search you need a warrant for because it's something the gov't does. The gov't here being the *executive branch* when it prosecutes crime.

> Search is a specific term with specific meaning

The legal system does not have a monopoly on defining words or being a source of truth. And it is obvious that the legal system's reasoning lines up with the action in this case - otherwise the action wouldn't have happened! If you were merely clumsily making a point about positive behavior (vs normative behavior), that might be understandable. But then we get:

> It's not a legitimate concern

You are trying to define away discussion about normative behavior by insisting on the legal system's definitions, as if the legal system's definitions and laws cannot be changed. Either because you think it's an easy way to win the argument, or because the legal definitions have warped your brain so badly that you cannot think outside of that box. Either way, sorry - there are valid concerns here.

Putting the way I see it in legal terminology: the relationship between a user and a data storage provider should be much closer to that of a trustor/trustee than the current "anything goes" regime. Legally demanding a user's data, and especially the retention of a user's data, from/by a centralized service should require some indication that the specific user is doing something illegal themselves - not merely that the hosting provider in aggregate might be. They are not "business records", but rather personal records being entrusted to the custody of a business.

Specifically in this case, it should mean that in order to access saved chats and demand retention of deleted chats, the NYT (et al) should have to point to specific users they think may be infringing upon their copyrights, not merely launching a fishing expedition against all users.

And once again, since you seem to have a problem keeping this separate - I'm obviously talking about how things ought to be, not how the current laws shake out.

>The legal system does not have a monopoly on defining words or being a source of truth. And it is obvious that the legal system's reasoning lines up with the action in this case - otherwise the action wouldn't have happened! If you were merely clumsily making a point about positive behavior (vs normative behavior), that might be understandable. But then we get:

It doesn't. But if you are going to discuss it, you should be discussing the actual thing, not the other thing which is irrelevant. It's no different than in programming. If were discussing programming arrays and you kept butting into the conversation about how arrays can mean other things in english, it would behoove no one.

>You are trying to define away discussion about normative behavior by insisting on the legal system's definitions, as if the legal system's definitions and laws cannot be changed. Either because you think it's an easy way to win the argument, or because the legal definitions have warped your brain so badly that you cannot think outside of that box. Either way, sorry - there are valid concerns here.

I'm not defining anything away. I did not come up with the legal definition for search in the context of the 4th amendment. That's on over 100 years of jurisprudence, not me.

> Putting the way I see it in legal terminology:

Of no use to anyone at all. If we're describing programming, mathematics, any science... it's not relevant what my own definitions, or the other definitions not applicable to the context.

>And once again, since you seem to have a problem keeping this separate - I'm obviously talking about how things ought to be, not how the current laws shake out.

So? A search is still a search in legal terms if we are discussing what the 4th amendment protects. You can either join the discussion we were having, or not. It's your choice. I'm not stopping you from doing anything, all I did was point out that your contribution was so far off from being cognizable in this context that it is doing everyone a disservice. You're clearly intelligent and capable of talking about these things accurately, you just chose not to.

It's a civil case and the gov't is not involved so...

> When you are struggling to reason around really straightforward issues like that, it does not leave me with confidence about your other judgments regarding the issues present here.

Or, perhaps, that's not something known by most. I didn't struggle to understand that, I simply didn't know it. Also, again, the article could have mentioned that, and I started my statement by saying maybe the article was doing a bad job conveying things.

> What constitutional issues do you believe are present?

This method of interrogation of online comments is always interesting to me. Because you seem to want to move the discussion to that of whether or not the issues are valid, which wasn't what I clearly was discussing. When you are struggling to reason around really straightforward issues like that, it does not leave me with confidence about your other judgments regarding the issues present here.

Method of interrogation? I'm not a mind reader. If you don't want to make yourself clear, that's fine. If you want to be petty, that's fine as well.

>Or, perhaps, that's not something known by most. I didn't struggle to understand that, I simply didn't know it.

Sorry you struggled to not understand your own concept that you put forward that because a lawyer isn't required (not true, but granting you this for the sake of this conversation), we shouldn't hold lawyers up to the standard of a lawyer anyway? That's facially silly.

> If you don't want to make yourself clear, that's fine. If you want to be petty, that's fine as well.

I literally just repeated to you what you said to me. But, yeah, I'm the petty one.

> Sorry you struggled to not understand your own concept that you put forward that because a lawyer isn't required

What? Why are you misinterpreting everything I wrote?

> we shouldn't hold lawyers up to the standard of a lawyer anyway? That's facially silly.

Where in the world did I say this?

Now that you’ve both done it, can we stop with the ad hominem?

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