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Comment by daenz | Hacker News Reader

I think he's saying the phone company is the 3rd party, and so searching and seizing from them is fine, because they're not searching you directly?

I guess a physical analogy would be if you held your belongings in a 3rd party storage unit, the judge is saying the cops should be allowed to search and take whatever they want, because they're doing it to you through a 3rd party.

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I don't think you understand what "3rd party" means.

The storage unit is a 2nd party. You (the first party) have a contract with the storage unit (the second party) to store your things. There is no third party.

Compare that to the phone company, where you (the first party) talk with someone else (the second party) using the phone company (the third party) equipment.

Thanks, I didn't realize I made that mistake. Maybe a better analogy would be a broker who is facilitating the transfer of some property, and the cops unreasonably searching/seizing the property while it's in the broker's possession?

Here's the most apt analogy regarding "transfer of some property": The police aren't allowed to search a package without a warrant, but the USPS does photograph all U.S. mail (160 billion pieces), and sometimes provides that information to a police investigation.

After all, what's on the outside (the metadata) is public.

But in general, the owner of your apartment complex cannot give police permission to search your apartment, and the owner of a storage facility cannot give permission to search your items.

(As an example of advices for the latter, read http://www.selfstoragelegal.com/articles/misc/police.asp , which tries to walk the fuzzy line of being nice to the fuzz without bending any consumer protection laws that far.)

So, if I give some papers to a lawyer to hold in his safe for me, I'm actually less secure than if I held them myself?

The lawyer is a second party, not a third party. In the telephone call situation, you are calling someone else, using the phone company's (the third party's) equipment.

In any case, there may be attorney–client privilege, but it only applies if the lawyer is acting primarily as an attorney for you. If you are using the lawyer just to store documents that you don't want to keep yourself, then there's no privilege.

So what does that make cloud service providers like dropbox? Aren't they directly analogous to me giving a document to someone to put in a safe?

I don't understand the question, sorry. Dropbox isn't a third party, and it isn't your attorney (or a handful of other fields with special legal status).

You should look to see the legal precedent for private courier service, or for storage facilities. Those are more likely to be comparable to dropbox, if only because consumer protection laws may be relevant.

(That is, you can't give it to your friend, to put into a safe, and expect that it has any status different that anything else that your friend had. For example, a warrant may require your friend to open the safe, because your friend might also store personal items along with your items. While for a storage facility, a warrant to search the business's records would not automatically imply searching the entire building.)

I don't get it... The Fourth Amendment Text reads:

    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.

And effects. They're washing this term of all its meaning.

That's like arguing that cops can search your apartment if it's being rented.

Effects in this sense is a synonym for movable goods, that is, physical property. The text of the fourth amendment protects your property. This and other rulings are saying that the records your phone company produces of what calls they've connected are not yours, but the phone company's property. If Verizon gives its own property to someone, government or otherwise, you have no standing to claim any violation of your rights.

A web analogy: the records of who called whom (i.e. "phone metadata") are just like web server access logs. You would like the court to say that the web server access logs you produce are the property of all the individual people that visit your website. The judge is saying those logs, produced and held by your server, are your property alone.

I still don't get it. There's equivocation with the verb to produce.

I'm going to play Socratic Advocate here. When a music producer produces a record of an artist, who owns it? How do we conceptualize this relationship of artist to market? Do we argue for record companies or for artists? What motivates the moral structure of this debate? Are we sympathizing with record companies or artists? It's a record of the artist's musical activity.

Now, a phone company is a producer of our records. We're its content producers. But if the record company re-uses its artist's work without that artist's permission...?

How do we conceptualize this asymmetry?

If I tell you I murdered someone, should the government have to get a warrant to get that information from you? What if they asked you if I visited your bookstore last week? What if you kept a journal indicating each time I visited your store, or bought a book? What if they asked Amazon for a list of when I visited their site, or bought a book? (Keep in mind Amazon has the right to refuse to give that information without a court order...the question is whether I can protest that subpoena, or only Amazon can).

At some point, there needs to be a line drawn. The 4th amendment has been interpreted to protect "reasonable expectations of privacy" in order to draw that line. If I tell you I murdered someone, or if you tell the police when I visited your store, that's over that side of the line. I have no reasonable expectation of privacy. I freely gave up this information to a third party.

The copyright law has an entirely different history, text, and history of interpretation.

I agree that the third party doctrine is no longer workable in the digital age (people probably have just as much of an expectation of privacy in their DropBox as their C: drive), but I don't think the other viewpoint is entirely unreasonable, especially during the pre-digital age.

Such institutionalized equivocation can only go on for so long...

I think this ruling, and others it foreshadows, points to a need to amend the Constitution to ensure protections for personal property held by third parties on behalf of private citizens. At the time the 4th amendment was created, it was reasonable to assume that anything a person wanted to keep private would be safely secured by them in their own home. Times have changed. Now I keep my private financial "papers" in a system administered by a third party bank, my private medical "papers" in a system administered by a third party insurance company, and a lot of my other private effects in databases administered by third parties google, dropbox, etc.

Luckily the Framers foresaw that future changes would necessitate changes to our fundamental law so there is a process for the People to make such issues much less open to broad interpretation by the judicial branch.

In legal philosophy there is the notion of "proximate cause" — this needs to be re-purposed for "effects" such that we define the notion of "proximate effects" w/r/t to content producers.

If a music artist has some legal clout regarding that which is produced, and can seek renumeration through certain provisions, we as content producers of phone companies (and obviously ISPs, because clearly that's the next phase in this legal narrative) should have provisions which scope and define joint ownership of our recorded activities insofar as a "chain of events" is scoped around our assigned IP addresses and telephone numbers.

A schema can follow http://schema.org/Person. Block any transaction between third-parties and government that involves these properties. Metadata becomes what is left over — raw information about what is essential to describe the service itself.

We are content producers just like music artists are content producers. Phone companies are just like record labels.

You're aware that the Third Party Doctrine goes back to at least 1979, right?

http://en.wikipedia.org/wiki/Smith_v._Maryland

I'm not saying the doctrine isn't in need of an update, but let's not act like this is some weird new thing the courts just invented.

The attorney general of Maryland who argued that case in 1979 has strongly protested against its application to mass surveillance.

http://www.npr.org/2013/12/21/256114227/1979-supreme-court-r...

Well, yeah. But what are we going to do about it since it's clear past due to update such laws. Now we're in the thick of an infrastructure that has just busted any practical sense of minimal right to self-governance.

That's true. But both sides of the political spectrum regularly do these sorts of linguistic end-runs around the Constitution in the name of the ends justifying the mean. The right does it to the fourth amendment, the left does it to the second. So neither side can legitimately call out the other for hypocrisy because nearly everyone is willing to jettison at least part of the Constitution when the stakes get high enough.

There's a different argument here. Some buildings keep a visitor log. That will say when I arrived, perhaps who I'm visiting, and likely when I left. I do not own that data, and it is not part of my papers.

Nor is this information part of the papers of the person I'm visiting. It's part of the business records of the building owner.

There's no promise that this information is private. Indeed, in some buildings it's often semi-public information, in that successive visitors can likely see the log when signing in or out, and it's left on the main desk all day.

The argument is that this information isn't under 4th amendment protection because it not not part of your private or personal information.

The recent court opinion by Judge Leon against the NSA points out - rightly, in my opinion - that when there is a lot of information about who you communicate with, then that in turn reveals information about you and your thoughts. You should read the opinion.

Such an Decision actually wholly deprives us of all self-governance what-so-ever since technically we do not own the fax machines and systems of all the companies we interact with.

This is totally disingenuous. It penalizes us for not only being born here but also for aligning ourselves with the American Dream.

Corporations are not people. Corporations do not have effects — we, the People, do. What kind of justice is this?

Law is not some unicorn that you can make whatever color you like. It is flawed like all creations made by man, and only what we make it.

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