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Comment by rayiner | Hacker News Reader

The FISC ruling ignores that fact because its simply not relevant to a 4th amendment analysis. The fourth amendment is rooted in an expectation of privacy. If one person can't reasonably expect the police not to drive by and look at what's on his lawn, a 4th amendment issue doesn't suddenly arise just because they canvas the whole block. The amount of information yielded by a search is simply not one of the elements of the 4th amendment. Maybe it should be, but it isn't, and the FISC isn't entitled to just add that to the analysis out of thin air.

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You're the professional, but to my understanding your characterization that the amount of information yielded by a search is a 4th amendment analysis "out of thin air" isn't accurate. Alito wrote in his concurrence in Jones v. United States:

Justice Alito then evaluates the GPS surveillance here, noting that “devices like the one used in the present case … make long-term monitoring relatively easy and cheap.” “[T]he best we can do in this case,” reasons Alito, “is to apply existing Fourth Amendment doctrine” and “ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated.” Alito at 13. Under this inquiry, “the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy,” because “society’s expectation has been that law enforcement agents and others would not — and indeed, in the main, simply could not — secretly monitor and catalogue every single movement of an individual’s car for a very long period.” http://www.concurringopinions.com/archives/2012/01/united-st...

It seems to me that Alito is saying that the amount of information gathered in Jones is relevant to 4th Amendment analysis. Specifically: "society’s expectation has been that law enforcement agents and others would not — and indeed, in the main, simply could not — secretly monitor and catalogue every single movement of an individual’s car for a very long period". Three other justices joined with Alito on this concurrence.

I'm not professionally trained in this this domain, so I might be missing something. Can you reconcile Alito's concurrence with your position? Yes it was not the opinion of the Court, but surely a concurrence clears the "out-of-thin-air" bar?

It's entirely relevant if the expectation of privacy includes the information extracted, but not the underlying individual pieces, but that's somewhat tangential to why I think it's problematic.

> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment doesn't expressly mention privacy, but it does talk about the specificity of the search - and I'd argue that using instruments meant for the collection of lone records to gather entire sets of social information synthesized from those records likely violates both the specificity (they're fishing, not being targeted) and may violate the reasonable requirement.

It's also a possible violation of the First Amendment, as it has an inherently chilling effect on the right to free association if the government is constructing a database of all your interactions with people, for the purpose of later deciding what you did wrong.

There are two steps to the analysis:

1) Is there a reasonable expectation of privacy? This expectation refers to the situation, not the information extracted.

2) If there is a reasonable expectation of privacy, a warrant requiring specific descriptions of what is to be searched is required.

You're right that collecting lots of peoples' information creates a specificity problem in situations where a warrant is required, but if there is no reasonable expectation of privacy to begin with, that prong doesn't even enter into the analysis.

Aren't those "two steps" and the analysis sort of after-the-fact relative to the 4th Amendment itself? I mean, those "There are X steps to a blahblah" things are Supreme Court Rulings from the recent past. Those analyses are the stuff of lawyering, and seem to me to divorce the plain meaning of the US constitution from how it's currently interpreted. The whole 3rd Party Records doctrine stems from such a divorce, and seems to defy the plain wording of the 4th Amendment. It also seems like a petty dodge on the part of law enforcement, frankly. "Oh, not a search, 'cause you let the phone company in on the deal." Sure, but The Phone Company doesn't care what I say in the call, and doesn't have the capacity to record every damn thing I say. Also, there's something of a professional relationship there.

I realize that nothing I wrote would withstand some kind of "N-Prong Test for Violation of Privacy", but that's the point. Those "N-Prong tests" are a way of talking around a violation of privacy.

Note the posture of my comment: talking about the FISC court's ruling. While you're entitled to argue about the merits of the Supreme Court's 4th amendment jurisprudence, the FISC court is not. It must analyze the issues in terms of the framework established by the higher court.

Frankly, I expect better from people as smart as Federal Judges that are outstanding enough to get appointed to a special higher court. I expect them to use logic and reason from first principles as well as coloring between the lines.

I also see "analyze the issues in terms of the framework" as another petty dodge. It appears that lawyers and judges are in some "inner circle", and they are rooking the rest of us of some pretty plainly worded rights by making up "frameworks" and demanding "standing" in order to construct weird Catch-22s that leave people singing that at least they know they're free, but not actually having any such freedoms because of "3 prong tests" for something irrelevant.

Has there ever been a court ruling you've disagreed with? I can't think of one.

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