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Comment by hawkice | Hacker News Reader

Not sure this counts as a technicality. Do all foreign objects get 4th amendment protections (the servers were in Iceland)? Can I invoke defense of someone else's 4th amendment rights -- even without specifying who that is? Both of these appear to have the answer "no", so I'm not sure this is a "letter but not spirit of the law" thing. Sounds like the judge was just doing his job.

If the servers aren't his, how can he say his privacy was violated? Therefore, the violation is contingent on establishing it was his, which he hadn't done.

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Wait no. The 4th amendment is an unalienable right. It doesn't (shouldn't) matter where in geologically a person or his property are.

We can think about it this way. The United States (well, certain bureaus) do not believe that the Bill of Rights contains unalienable rights because:

1.) Foreigners ("aliens") are not 'given' what is presumably 'unalienable' to them (e.g. GitMo)

2.) Snowden Docs (in particular the US) shows how intelligence agencies will spy on one anothers' citizens on their behalf to skirt domestic law. A serious commitment to unreasonable searches and seizures would entail protecting citizens rights from foreign actors, not encouraging it. And it would also refrain from doing it to others.

3.) Fair trials are suspended where convenient, even before executions (e.g. Americans overseas, Bin Laden).

By tautological definition there are no 'extreme' circumstances under which natupal rights are no longer granted; for natural rights are not given, cannot be taken away, suspended or invalidated by geolocation.

The Fourth Amendment is part of a document legally defining and describing the rights in American legal tradition, in this case a right that you and I both find to be a core part of our humanity and social contract (which is why it is so important it is legally respected, although I personally find the principle worthy of extending much farther).

While we recognize in a moral and philosophical sense today that we should treat all people of the globe identically, that isn't the group of people the Fourth Amendment protects. In a general sense, people in other countries are not subject to American law (despite being part of the same humanity and, we can agree, deserving of being treated with respect). If people and objects in other countries were subject to American law, there is a deep sense in which there would only be one country (The United States) with charming colonies labelled things like "Iceland" on maps.

> The Fourth Amendment is part of a document legally defining and describing...

No disagreement there. But that doesn't mean that the document grants the right. It merely recognizes the rights.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights...

These rights are not granted by the United States. The United States cannot grant or take away natural rights. That's what they are and how they were intended to work.

A great opinion. I heartily endorse that opinion.

But the FBI, and US DoJ, operate under some interpretation of the verbiage in the US Constitution. That interpretation has come to mean less and less protection against searches and seizures over the years, as the US Supreme Court interprets what the (to me) plain and simple language of the 4th amendment says.

The Declaration of Independence is not part of the Constitution, you know.

Also, there are limits on those rights. There's one example in the opinion; if the police somewhere else discover some incriminating information about you and voluntarily pass it along to American police, it is admissible regardless of whether the foreign investigation would have been valid under the 4th amendment if initiated by American law enforcement.

As a simple example, imagine a drug bust in Thailand which would not be 4th amendment compliant turns up evidence that 50% of the money from the drug operation is always send to John Doe, who lives on 123 Main Street in Anytown, USA. The FBI duly arrests John Doe and he's charges with international drug trafficking. The Thai evidence is admissible notwithstanding the non-compliance of Thai investigative procedures with US law.

This isn't meant to be an analogy for this case, BTW, just an illustration of one limiting case.

They can hold those truths self evident, but it isn't self evident.

> In a general sense, people in other countries are not subject to American law

The rights are really limitations on the American government, so it's not "subjecting" anyone to anything, and there's no reason limitations on the US government couldn't apply to how it treats people all over the globe. It's no imposition on the sovereignty of Iceland for the US not allow itself to hack into servers there.

Moreover, in practice, it's way more complicated than you're implying. The Supreme Court has been clear that the geographical location of a US citizen actually doesn't matter at all:

> When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land. [1]

So it's not just "people in other countries", and presumably the same thing applies to his property being in that other country.

And it's not just citizenship that matters: foreigners on US soil are protected by much of the Constitution, even undocumented immigrants [2]. So apparently neither location nor citizenship strip you of your rights. However--and this is the weird part--for some reason the combination matters: foreigners on foreign soil are not afforded the protections of the Constitution. See e.g. [3].

[1] http://www.law.cornell.edu/supremecourt/text/354/1 [2] http://usgovinfo.about.com/od/rightsandfreedoms/a/illegalrig... [3] http://en.wikipedia.org/wiki/United_States_v._Verdugo-Urquid...

I think you'll find we completely agree -- the simplification seemed appropriate because it really is a question of how US law applies to objects located and plausibly operated by people who aren't Americans.

An important point you made, though:

> The rights are really limitations on the American government [...] It's no imposition on the sovereignty of Iceland for the US not allow itself to hack into servers there.

This is pointing in the key direction I was trying to go. I feel we _should_ hold ourselves to a higher standard, and I suspect there is no substantial barrier legally. But judges are rarely in the business of "should", otherwise we wouldn't have rule of law. Hence my comment about him seeming to just do his job in this case.

Anyhow, you got my upvote. :)

Germany does give human rights to non-Germans. And you can sue the German government for not upholding them. (They only give citizen's rights to Germans, though.)

I think you're confusing the meaning of "unalienable" rights. Unalienable rights are rights that can't sold, traded away or taken... it's not really related to whether someone is from a different country.

But it's an easy mistake to make because it's a totally archaic word.

I'm not misunderstanding it, no. I like to make wordplay; I'm sorry it was confusing. If you reread hopefully you will see we are in agreement.

There are no such things as natural rights. The 4th amendment defines legal rights, and does not have extraterritorial application. Foreigners have no rights under the Constitution for the same reason they have no obligations under it.

Wow. First, you are claiming the Constitution grants rights. Who, exactly, has the power to "grant rights?" Do you think the people who wrote that document gave themselves that power, or even thought that they could?

Second, you think the Framers thought they were limiting rights to US citizens. When did the Constitution first even mentioned the notion of citizenship?

We have the power to grant rights to each other through our duly elected representatives. Note that the first three words of the US Constitution are "We the People" not "We the Framers."

Cool. So there's a list of my rights? Where?

If the servers aren't his, why is he in court? Doesn't that mean that the real mastermind behind silk road is still out there and that the FBI got the wrong guy?

That's the least effective rebuttal I've heard in a while.

Obviously the government is going to do whatever it can to prosecute the guy, rules be damned.

In FBI logic, something you use is not protected from search, if someone else owns it. The logic goes, that other party could conceivably one day break your trust and divulge your secrets, therefore you have no expectation of privacy. Same argument they use to read your mail when it is in your mailbox.

Opening first-class mail and standard parcels from the Postal Service requires a warrant[1] by federal law, whether or not it is in a mailbox. Is there some specific example you are referencing?

[1] https://postalinspectors.uspis.gov/contactUs/faq.aspx

That is correct, but the warrant requirement does not follow common sense. Let me try to explain further with an example. A sends a letter to B with information in the letter that implicates C in a crime. The FBI does not have a warrant to open and search the letter. The FBI goes ahead and searches it anyway. Now, the FBI has evidence that C was involved in a crime. C, obviously, would like to challenge the search based on the warrant requirement of the 4th Amendment. It is here where the warrant requirement diverges from common sense. C does not have "standing", which is a legal term of art that basically means the court can hear and decide the case, to challenge the search because the mail was not his. Therefore, without standing, C cannot challenge the search even though the FBI did not have a warrant for the initial search. In contrast, A would have standing because he has a "reasonable expectation of privacy" in his own mail (assuming there was incriminating information against A in the letter).

No, that evidence would still be inadmissible. They could use "parallel construction" to obtain new and admissible evidence to implicate C in the crime, and could use the inadmissible information to launch an investigation they might otherwise not have. But the standing issue in this case is that Ulbricht cannot argue that his fourth amendment rights were violated by search and seizure of a third party's property.

39 U.S.C. § 4057 specifically requires a warrant for certain classes of mail and parcels, and therefore any evidence obtained in a warrantless search would be inadmissible.

Yes, that statute requires a warrant. However, the exclusionary rule is only applicable to one with a "reasonable expectation of privacy." In the hypothetical, C does not have such an expectation, and therefore C cannot challenge the admissibility of the evidence notwithstanding the statute.

Yes, you are correct. Upon rereading your hypothetical, I realized I interpreted it incorrectly.

Of course, it doesn't mean that such evidence would be especially compelling to a judge or jury in those circumstances, but that's a separate matter.

What about FedEx?

FedEx and UPS (and DHL, OnTrac, et al.) are private companies. They have the authority to open your package at any time for any reason, with few exceptions.

If I gave you a box and asked you to give it to someone else, you have the legal right to open it up and do whatever you want to it. The most I could do is sue you, civilly, for breaking a defined contract if one was in place, but for the most part I'd be limited to calling you names.

>They have the authority to open your package at any time for any reason, with few exceptions. //

Contract law in USA is that weak? They have authority? As in the law authorises anyone to access anything just by virtue of being contracted to move it, not even ownership? Contractual obligation can't override that authorisation .. are you sure?

That would mean, for example, that your taxi-driver has the right to go through your bags by virtue of you asking them to put them in their car. Or that Starbucks have a _right_ to access your laptop if you left it in the store for any length of time. Or if you park in a private parking lot the owner could break in, hot wire and drive your car around.

Or are you saying that only certain possessions are treated as if you didn't own them and only certain companies contracts are treated as null?

tl;dr http://en.wikipedia.org/wiki/Trespass_to_chattels, but yes it's a tort.

I believe uxp's point is that one would only have a civil remedy for breach-of-contract, and evidence would be admissible in a criminal court if a private carrier provided the information to the authorities with or without their consent.

But most likely, the contract with UPS/FedEx/etc would afford broad abilities to inspect and search packages for "safety and quality control" reasons, or whatever else.

Yes, that's precisely what I mean.

To take his example, if I carelessly left my laptop in a Starbucks, I have not given anyone the right to use, transport or otherwise inspect my laptop. I can assume some right to privacy over the contents of it. But if I gave my laptop to a company that specializes in transporting laptops between Starbucks locations on behalf of patrons, one can pretty much assume (given today's contract binding society) that they have some clause in the contract between us that says that they are not responsible maintaining the content of the laptop, and can at their discretion open it up and inspect the contents to be sure that they are not the facilitator in transporting illegal or "bad" data (malware source code, child porn or terrorist manifestos, etc). They don't have the explicit right to open it just because, but in giving it to them I've given them the right to do so.

But the judge would have let him establish merely "a personal privacy interest in the Icelandic server or any of the other items imaged and/or searched and/or seized", which sounds like "using", but not necessarily "owning".

Which makes it even stranger, because I don't know how the judge would reconcile that theory with the third-party doctrine, which (in my layman's understanding) seems to be about what you said; namely that since some person(s) shared all the information in the image with the ISP, it wouldn't be subject to anyone's Fourth Amendment protection. Or is there some line between a hosted email account and a VPS; where the email has been "shared" with the host, but the VPS's contents can't sufficiently be shown to have been "shared" and thus are still protected? [1]

[1] https://www.quora.com/Fourth-Amendment/Does-the-third-party-...

Everyone is (rightly) taking issue with your mailbox example, but the substance of your point is correct. The Fourth Amendment doesn't require that investigators get a warrant to look at information that you've already handed over to a third party. That's because the Fourth Amendment suppression-of-evidence rule protects citizens' privacy interest. If he has already made the information non-private, then investigators can't be said to have violated his expectation of privacy by accessing it.

Note that the rule doesn't require suppression of just any evidence obtained illegally -- only evidence obtained in violation of the defendant's constitutional rights (and, in particular, his right to privacy). Relatedly, note that the suppression rule is not actually written into the Fourth Amendment. It is a judicial creation to deter particularly egregious violations of the Fourth Amendment. http://en.wikipedia.org/wiki/Exclusionary_rule#Limitations_o...

>The Fourth Amendment doesn't require that investigators get a warrant to look at information that you've already handed over to a third party. //

You're right, if they ask that third party to see it. But if they don't ask, they hack in, then they're breaking the USC that protects against unauthorised access to computer systems [18 USC 1030?].

The third party usually will have a legal requirement not to divulge your info without a warrant (except perhaps under conditions threatening national security). I'm not sure on this for USA, most countries have laws protecting personal information; your contract binds the company to not disclose information but a warrant supersedes that ... but presumably there's not a general regulation forcing companies to disclose information to authorities who merely request it as opposed to getting a warrant. That would be most undemocratic.

Thus under rule of law, despite the Fourth not applying, the FBI would still need to get a warrant before either hacking in or making the company disclose the information, no?

Like, they can open your mailbox as the postal service own it, but if it's locked then they'd need to get the key/authorisation from the owner (or they'd break the law, breaking and entering or bypassing security or somesuch). If the owner says "no" then they'd need a warrant (legally speaking) to force the owner to open the box and take your post out. If they just break in and take the post it's not a Fourth Amendment violation against you, AFAICT, but it's still unlawful.

IMO the evidence should still be used but the fact of the evidence being obtained means that if submitted by the state it's also evidence that a person working for the state committed a crime. Rule of law means that person should be tried as should any co-conspirators. But this last para is just my idea of democratic responsibility and not how things are.

Originally, the Bill of Rights bound the government to certain behaviors. It doesn't have a border because it applies to the government not their actions in a certain place.

This sounds right to me but all my James Madison and Thomas Jefferson -fu seems to be failing me. Can we get a citation here for their intent? I'm getting some quotes that indicate they were worried about majority vs. minority stuff, but nothing with any international flair (and, of course, America is a minority of the world, so it doesn't quite pack the punch I would enjoy).

EDIT: I am concerned, the further I go in this search, that the reason they seem not to speak of the rights of foreigners as inalienable may be because e.g. so many foreigners are black or Chinese, and you didn't even get a rights guarantee back then if you were American-born and black or Chinese (not that there were a lot of Chinese people there at the time -- burning down their houses and threatening to kill them if they didn't leave comes later in American history, with similar problems for Japanese people even _later_ in American history), so there was just no chance anyone would even possibly consider the hilarious joke that we'd give rights guarantees to foreigners.

Could be off-base, but the context back then was... decidedly less progressive than we'd like to imagine them now.

The Constitution applies to the government, it is a white list (to use a racist term, ;) to say what the government CAN do. Not that we follow it any more. The government doesn't _allow_ us to do things, it is quite the opposite.

A plain English reading of the Constitution certainly says so. It is addressed TO the federal government FROM the people. So it is incorrect to speak of "constitutional rights." In fact, the BoR goes as far as to say it's not a list of rights and that rights have no bounds.

Now find me a lawyer who reads the Constitution this way.

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