Item — HN Reader

This is a hole in the Constitution that would be better patched, at least with statute, better with an amendment. The fourth amendment says

  The right of the people to be secure in their persons, houses, papers, and effects...

Who is "their" here? In terms of property rights it's the people who own those digital "papers". The individuals who that data is about do no maintain or control that data, and could not destroy it, meaning they do not functionally have property rights over it. If I write in my notebook that you have blonde hair, the notebook is still my property. There isn't anything I could write about you in it that would make it yours (other than maybe "I hereby give this notebook to Joe Bloe").

Attempts to interpret the Constitution otherwise are, IMHO, attempts at good policy, but unstable as law. So we should fix it either by giving people property rights to that data (so that they can destroy or change it without permission) or to explicitly require warrants for access to PII owned by third parties.

4 comments

     ..."and particularly describing the place to be searched, and the persons or things to be seized."

It was an attempt to secure privacy. "Their" means an individual, a person. Essentially, you control what you control, and do not need to give up this control unless there is suspicion of crime.

If you want to change "their" to mean "data about them" rather than "data owned by them" you have to not give precedence to the original public meaning. The result of that is that ordinary people are in a worse position to know what the law means, because it can fundamentally change by reinterpreting a word.

"data owned by them" is one's papers and/or effects, depending. "data about them" pretty much didn't exist in the late 1700's when we compare it to the enormous scale of that data today. A combination of the third-party doctrine and legal restraints that prevent it from being turned into dragnet surveillance is more or less what applies to that.

There are also the rights of the people to peaceably assemble -both publicly and privately-, peaceably speak publicly, and peaceably bring their grievances to the various governments that govern them. All of those rights interact with regulation of the things we're talking about here... it's not just the 4th amendment that's relevant.

These cameras are in public, where expectation of privacy has been ruled against a zillion times.

Go against this, and filming your kids baseball game becomes a legal nightmare.

It seems very easy. Always on spy camera installed for the express purpose of dragnet surveillance? Illegal. Film child’s baseball game? Legal.

I find this attitude I find kind of tiring. Gosh it’s just sooo hard to figure out the difference between Flock Safety and Big Bill’s Little League Sports Photography. It’s actually very straightforward to determine the difference between these two things. So easy, an idiot could do it. Or a judge.

While I do agree it's tiring and agree with your point I think the issue is finding the exact point to draw the line. It's easy to differentiate the two ends.

I think the operative difference here is that in the case of the little league photography, the cameras are not fixed in place, are temporary, and are not set up with the intent to capture the identity and actions of everyone in the background. Fixed-installation cameras are permanent, do attempt to capture all possible subjects in its frame, and have an alternate, obvious intent to identify them all. I don't think a Private investigator, paparazzi, or parked police cruiser on a stakeout represent anywhere near the same practical or legal problems as fixed, always-on surveillance cameras. As such, this seems to me like a good place to draw the line.

I don't really care about the fixed vs mobile distinction. Police could just use a drone swarm that automatically charges if it were ruled fixed installs were illegal.

Haven't stalking and surveillance always had a different interpretation despite mostly taking place in public?

> Haven't stalking and surveillance always had a different interpretation despite mostly taking place in public?

Yep. And dragnet surveillance has (pretty much?) always been illegal in the US... but it takes the courts an awfully long time to notice the new dragnets the cops set up.

For example, despite the fact that the third-party doctrine says that cops can just walk up and get any ordinary business records someone you do business with has created about you, courts continue to notice and declare illegal new ways in which naive application of that doctrine creates dragnets.

By this logic I could track you 24/7 with a squadron of drones flying 4 feet above you watching your every movement including through all your windows.

I would love an amendment that adds communications and movements to that list

Have fun writing a legal definition that accomplishes what you want but doesn't bar the police from creating a composite sketch from witness descriptions.