Comment by rayiner | Hacker News Reader

Comment by rayiner | Hacker News Reader

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There is no protection for UPS, DHL, FedEx, etc. The only one for which there is protection is the Postal Service, and that is because it is an organ of the government.

Also: the government could always ask your friend at the other end about what you said, not just Facebook.

The intention of the founders re: the 4th amendment was not to protect communications between people, it was to protect people from personal searches. Read the text: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."

Persons, houses, papers, and effects? What do all those things have in common? They are personal to you. You'd feel violated if someone else entered your house or rifled through your effects. That same reasoning doesn't apply to something like a Facebook message that any of a number of people at Facebook could read. Maybe you assume that they wouldn't do that, but they certainly can.

Maybe we need a law to keep the government from getting Facebook messages without a warrant. But that's a separate thing from the Constitutional issue. Personally, I don't even think we need such a law. If you're okay with Facebook or Google looking at your communications, you should be okay with the government doing so.

While I find this line of thought personally abhorrent, I give you my glad upvote for helping me to understand what must be the reasoning of the government.

If you could help me follow the idea further: In my mind, a communication is mine until I send it, at which point it is my property in the trust of another, until delivered to whom I'm communicating with, at which point it becomes their property.

I know legal reasoning doesn't always follow what I may consider to be common sense- can you shine any light on what I'm missing?

(Prefer not to focus on the DHL/UPS etc side of things, because I understand their right to snoop is a part of their TOS.)

The difference between the legal reasoning and your reasoning is the "property in trust" part. Legally, once you hand your communication over to Google, it's their property. If they choose to hand it over to the government, that's their business.

Think of this hypothetical. Say Google reads your g-mail and tells people you ordered green shirts. Do you have a lawsuit against Google for disclosing your private information? I doubt it. If the information is sensitive for a different reason (e.g. it's about your herpes diagnosis), you might have a suit, but then you'd also have a suit against a friend to whom you told that information in confidence. I.e. it's a suit based on the nature of the sensitive information, not the disclosure by itself.

The idea of this "information trustee" doesn't really exist in the law. Google is treated no differently than a guy on the street you tell to relay a message to your friend. And as for the 4th amendment, as I said, wiretapping aside it's more of a "personal search" protection than a "communication protection." This is a good summary of the relevant precedent: http://www.cs.duke.edu/~chase/cps49s/carnivore-history.html

  | Legally, once you hand your communication over
  | to Google, it's their property.

If I put some of my belongings in a storage unit, I don't lose ownership of them. If I accidentally leave (e.g.) my sunglasses at a restaurant, the restaurant doesn't own them now. If I give a package to DHL, they can't decide that they don't want to deliver it, and it's theirs now.

There is in the law the idea of trusteeship of personal property (the law of bailments). There is no such analogue for information.

I'm arguing that the analogue should be there. When I mail a letter to someone it's just a physical manifestation of the information. The fact that it's physical is a by-product of the transfer medium. I don't feel like rights should be lost just because we can represent the content of that letter as an email, and send it over a 'series of tubes.'

If I store files on Dropbox, I am arguably paying for them to store the files for me, not giving them to Dropbox to do with what they like. It should not be treated any differently than a rented storage space in the physical world (regardless of implementation details like de-duplication).

Here is where you get into the tricky difference between what makes sense, and legal definitions. You may very well be right- I certainly feel you are. But that line of reasoning must be established by legal means.

It's like right now you have the idea, but haven't written the code.

But if you leave your sunglasses in a restaurant, and the government wants to take fingerprints off of them, they can.

The statement that once (e.g.) Google has the message that they are supposed to be passing on my behalf, that it's now theirs to do with as they please is a much more bold statement then the original discussion of whether or not they should be allowed to hand it over to the government.

Not really. That is nothing more than a civil contract issue between two parties. And to have a valid contract there must be an offer, acceptance, and consideration. Not just the promise of future consideration either, so saying that Google could make money off of you later (by e.g. directed advertising) wouldn't make an enforceable contract.

But as it stands things are even more lopsided towards Google. Go check their terms of service, I'd bet they have a half dozen different ways of indemnifying themselves from liability in the event they don't deliver that email.

I didn't raise a Constitutional issue. I'm pretty sure that "reasonable expectation of privacy" is found no where in the Constitution.

  | If you're okay with Facebook or Google looking at
  | your communications, you should be okay with the
  | government doing so.

- This treads awfully close to 'if you have nothing to hide, then you have nothing to fear.'

- Government employees wield much more power than Facebook employees.

- If it was common knowledge that all Google/Facebook employees had unfettered access to all communications going through their systems, then people would treat the system differently. As it stands, employees should only be looking at specific communications to deal with work functions (investigate complaints from users, look at a message that caused a back-end system to blow up, etc).

> This treads awfully close to 'if you have nothing to hide, then you have nothing to fear.'

But you're not hiding anything. You're transmitting it in clear text through Google/Facebook's services. You're not worried about the right to hide your information, you're worried about the right to hide it against the government specifically. That's the key distinction. I do have things to hide--I don't share those thing with either Google or the government, and those are the things I want protected. If I choose to share something with Google, I'm okay with the government having access to it too.

> Government employees wield much more power than Facebook employees.

In my mind, the government has a lot more power to screw me over, but private industry has a lot more incentive. I'm much more worried about credit ratings agencies, insurance companies, potential employers, etc, having access to my information than I am about the NSA looking at my information.

> As it stands, employees should only be looking at specific communications to deal with work functions

That's the same for government employees. Maybe the difference between us is that you implicitly trust the employees of Facebook not to do stuff like this, and don't trust government employees, while I feel the opposite way.

  | But you're not hiding anything. You're
  | transmitting it in clear text through
  | Google/Facebook's services. You're not worried
  | about the right to hide your information, you're
  | worried about the right to hide it against the
  | government specifically.

That's not true. If I send a person-to-person message that goes through Facebook or Google, am I ok with that information broadcast across the globe to everyone? Probably not.

  | If I choose to share something with Google, I'm
  | okay with the government having access to it too.

Are you ok with the government having unfettered, unrestricted access with little or no oversight? That doesn't make any sense to me. Even if you don't care about the information that Google/Facebook have on you, do you really want government agencies to get used to accessing information without a warrant? It only incentives them to push for more access to information without a warrant.

  | Maybe the difference between us is that you
  | implicitly trust the employees of Facebook not
  | to do stuff like this, and don't trust government
  | employees, while I feel the opposite way.

Facebook is more accountable that the government is. To be fair, there are bad actors in all places, but the FBI/US Attorney General has more incentive to pull people into court, and send them to jail than Facebook employees do[1]. FBI agents 'doing their job' is more of a risk than Facebook employees doing their job, because the FBI agents' jobs are about arresting people and charging them with crimes.

When was the last time that an FBI agent was fired for overstepping their authority? On the other hand, I feel more trust that Facebook/Google would fire an employee that overstepped their authority.

[1] And they are always testing the bounds of how they can apply the law. See the case of trying to charge the mother that drove her daughter's classmate to suicide, where they tried to charge her with 'hacking' because she violated the Terms of Service of MySpace.

> Facebook is more accountable that the government is.

How do you figure that?

> To be fair, there are bad actors in all places, but the FBI/US Attorney General has more incentive to pull people into court, and send them to jail than Facebook employees do.

The difference is that only a small fraction of people do things that causes the federal government to become interested in putting them in jail. Most people do things that arise the interest of private industry. See, e.g., the credit ratings agency mafia. Those companies would have a field day if they had access to Facebook's information. See also, all the hiring managers that would have to have access to peoples' social networking information in order to blacklist them for jobs. Or insurance companies looking for any reason to drop people from healthcare plans, etc.

How much you worry about something is generally proportional to the product of how likely that something is to happen and how bad that thing would be if it did happen. It's exceedingly unlikely that you'll be at the receiving end of a federal prosecution, even if that would be a really bad thing. But having trouble with your credit, having trouble getting a job, being dropped from your health insurance--all of these things are much more likely, and they can be pretty bad in and of themselves. Yeah, sure, the government can bankrupt me defending a prosecution, but then again so can my HMO dropping me from my health plan if I get sick.

As I said, I imagine this is a matter of outlook. I don't see myself as a revolutionary who might get railroaded by the government for fighting for a just cause. I do see myself as a guy with a wife and a kid looking to buy a house some day, worrying about health care costs for my aging parents, etc. Given that, the ways private industry can screw me over are a lot more real to me.

    I'm pretty sure that "reasonable expectation
    of privacy" is found no where in the
    Constitution.

No, but it was established in Katz v. United States[1] as one part of a two-part test of whether a search is constitutional under the Fourth Amendment.

[1] http://en.wikipedia.org/wiki/Katz_v._United_States

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