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Is metadata private?


swansont
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The items delineated in the court order, which specifically do not
include the person't name, address, financial information nor the
content of the call.

That delineates what the items are not. What the items are is not delineated.

 

I think we as citizens are entitled to a complete and well described list of the kinds of information that have been compiled, and how the information is filed and stored for retrieval.

 

We have official admission that among the items turned over are the times and locations of phone usage, for example. That would include the phone contacting or being contacted by its service provider, of course - which can happen whenever it's on, and in most phones whenever the battery is installed and charged. With that information I can easily identify (assign an ID number, say), find, photograph (in public of course), and tap on the shoulder, individual phone users. I would not of course know their name, or the address at which I found them (I would avert my eyes), so their privacy would not be compromised.

 

It is possible that the agents of the NSA, FBI, and private contractors they employ, are not so fantastically competent as I am, of course. It is also possible they could do all that (except the tap) by satellite and traffic camera, saving themselves shoe leather.

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I had another thought on the argument of why metadata is not private, even though it can be used to identify you.

 

Consider your picture. There is a reasonable chance that an individual could be identified by a picture. By some of the arguments above, your picture should be private data. Now, let's say you and a bunch of other people are out on a crowded street at some big event, and some lunatic (or lunatics) may have planted a bomb which could kill a few people and injure dozens of others.

 

But, since this was a big shindig happening in today's world, many people were taking pictures and posting them online, and there are surveillance cameras. Nobody knows if the suspected bomber could be identified in the pictures, and the pictures will contain the images of thousands of innocent people. If one takes the view that this information is private, then the police would not be entitled or permitted to look at the pictures, because you could be identified by the police, and you've done nothing wrong. That's the implication of claiming that this information is private.

 

The counter-argument is that you have no expectation of privacy when you show your face on a public street, and the police do not need probable cause to look at these data, even though they could be used to identify you.

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I had another thought on the argument of why metadata is not private, even though it can be used to identify you.

 

Consider your picture. There is a reasonable chance that an individual could be identified by a picture. By some of the arguments above, your picture should be private data. Now, let's say you and a bunch of other people are out on a crowded street at some big event, and some lunatic (or lunatics) may have planted a bomb which could kill a few people and injure dozens of others.

 

But, since this was a big shindig happening in today's world, many people were taking pictures and posting them online, and there are surveillance cameras. Nobody knows if the suspected bomber could be identified in the pictures, and the pictures will contain the images of thousands of innocent people. If one takes the view that this information is private, then the police would not be entitled or permitted to look at the pictures, because you could be identified by the police, and you've done nothing wrong. That's the implication of claiming that this information is private.

 

The counter-argument is that you have no expectation of privacy when you show your face on a public street, and the police do not need probable cause to look at these data, even though they could be used to identify you.

 

In your scenario above, you posit that the reader "and a bunch of other people are out on a crowded street at some big

event, and some lunatic (or lunatics) may have planted a bomb which could kill a few people and injure dozens of others," ---since you're the author of this exercise in thought-experiment, I ask, how are we to understand "some lunatic (or lunatics) may have planted a bomb"? Is that just offered as a possibility in the most strict and theoretical sense or are we supposed to imagine that there actually exists some present reason to suspect that some particular lunatic is involved?

 

IOW, how is your picture being drawn here? Is it more than the fact that, at any given public event, and at any given place or time of such an event, we may always speculate that "some lunatic (or lunatics) may have planted a bomb" ?

 

Are we supposed to imagine that in this scenario there is an actual lunatic and an actual bomb or just the hypothetical possibility of there being one? And, then, who, if anyone, (besides the presumed or hypothetical lunatic) has knowledge of these facts? And how are they suppposed to have come by that knowledge?

 

For the C.I.A. and N.S.A., there are always potential lunatics planting potential bombs, which threaten potential injury and loss of life. And, to counter this, everyone, everywhere, is always under as much surveillance as the current technology permits. That is the "fishing expedition" theory of (known or unknown) searches and seizures of data--"someone somewhere is certainly engaged in the planning or perpetration of a crime. We have to find them and arrest them before the crime is committed ---and, indeed, before any reasonable indication of it is apparent. So, we take as our suspect class: Everyone, everywhere, all the time, and we simply look for anything which we can identify as potentially indicating a ground for suspicion.

 

That is a police state.

Edited by proximity1
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In your scenario above, you posit that the reader "and a bunch of other people are out on a crowded street at some big

event, and some lunatic (or lunatics) may have planted a bomb which could kill a few people and injure dozens of others," ---since you're the author of this exercise in thought-experiment, I ask, how are we to understand "some lunatic (or lunatics) may have planted a bomb"? Is that just offered as a possibility in the most strict and theoretical sense or are we supposed to imagine that there actually exists some present reason to suspect that some particular lunatic is involved?

 

IOW, how is your picture being drawn here? Is it more than the fact that, at any given public event, and at any given place or time of such an event, we may always speculate that "some lunatic (or lunatics) may have planted a bomb" ?

 

Are we supposed to imagine that in this scenario there is an actual lunatic and an actual bomb or just the hypothetical possibility of there being one? And, then, who, if anyone, (besides the presumed or hypothetical lunatic) has knowledge of these facts? And how are they suppposed to have come by that knowledge?

Does the condition change the answer of whether your image is private or not?

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The condition is material to a discussion of the validity of authorities' acts concerning the photo images, even before getting to whether those pictured in them have a reasonable expectation of privacy. You've set up a scenario and offered it as a thought-experiment/example, in order, I gather, to make some point. But in doing that, you've left out of your fact set vital details--which I've asked for in order to give a properly-informed reply.

 

To me, it makes all the difference in the world if the lunatic refers to an individual that the authorities in the scenario have obtained reasoned grounds to believe exists, or, on the other hand, is simply a completely hypothetical entity for which there is no actual living referent in the context of the scenario, of course. My answer might, yes, turn on or be influenced by this information.

 

I've asked you to "draw a clearer picture for us" in order to be able to offer a useful answer.

Edited by proximity1
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The condition is material to a discussion of the validity of authorities' acts concerning the photo images, even before getting to whether those pictured in them have a reasonable expectation of privacy. You've set up a scenario and offered it as a thought-experiment/example, in order, I gather, to make some point. But in doing that, you've left out of your fact set vital details--which I've asked for in order to give a properly-informed reply.

 

To me, it makes all the difference in the world if the lunatic refers to an individual that the authorities in the scenario have obtained reasoned grounds to believe exists, or, on the other hand, is simply a completely hypothetical entity for which there is no actual living referent in the context of the scenario, of course. My answer might, yes, turn on or be influenced by this information.

 

I've asked you to "draw a clearer picture for us" in order to be able to offer a useful answer.

 

So your expectation of privacy depends on whether or not there is reasonable suspicion a crime has been committed? That would seem to imply that a police officer can't look at your face unless s/he already had a reasonable suspicion that you had committed a crime.

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If one takes the view that this information is private, then the

police would not be entitled or permitted to look at the pictures,

because you could be identified by the police, and you've done nothing

wrong. That's the implication of claiming that this information is

private.

 

 

The counter-argument is that you have no expectation of privacy when

you show your face on a public street, and the police do not need

probable cause to look at these data, even though they could be used to

identify you.

There is a third take: the information is not private, but the police have to have cause to compile it and analyze it and store all this in files and use it to stalk you or snoop into your life - whether they identify you by name, and your location by address, or not.

 

By cause is meant not necessarily "probable cause of crime", but one or more of a limited set of reasons for accessing the data, these reasons set out in publicly reviewable and openly available policy, with oversight and sanctions for violation.

 

That was the take on the vehicle and driver's license info in Minnesota, when government employees were caught accessing it without good reason and compiling files on people they were interested in personally. The prospect of abuse was obvious, and had been recognized, and policies put in place, and secrecy or immunity from oversight prevented: these stalkers were caught and punished, their victims had opportunity for confrontation and redress.

Edited by overtone
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I had another thought on the argument of why metadata is not private, even though it can be used to identify you.

 

Consider your picture. There is a reasonable chance that an individual could be identified by a picture. By some of the arguments above, your picture should be private data. Now, let's say you and a bunch of other people are out on a crowded street at some big event, and some lunatic (or lunatics) may have planted a bomb which could kill a few people and injure dozens of others.

 

But, since this was a big shindig happening in today's world, many people were taking pictures and posting them online, and there are surveillance cameras. Nobody knows if the suspected bomber could be identified in the pictures, and the pictures will contain the images of thousands of innocent people. If one takes the view that this information is private, then the police would not be entitled or permitted to look at the pictures, because you could be identified by the police, and you've done nothing wrong. That's the implication of claiming that this information is private.

 

The counter-argument is that you have no expectation of privacy when you show your face on a public street, and the police do not need probable cause to look at these data, even though they could be used to identify you.

This is why I don't like this conception of privacy. The danger comes in aggregation, reuse and mission creep. Start indexing Instagram pictures with facial recognition and no single picture will we an invasion of privacy -- but in aggregate you can learn more about people than a strip search would provide.

 

See also http://papers.ssrn.com/sol3/papers.cfm?abstract_id=990030

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This is why I don't like this conception of privacy. The danger comes in aggregation, reuse and mission creep. Start indexing Instagram pictures with facial recognition and no single picture will we an invasion of privacy -- but in aggregate you can learn more about people than a strip search would provide.

 

See also http://papers.ssrn.com/sol3/papers.cfm?abstract_id=990030

 

Then it seems to me the problem is with aggregation, reuse and mission creep, and not because of some inherent expectation of privacy.

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The focus here is rife with confusion.

 

First, « aggregation » is a misnomer and misleading, as it seems to suggest some sort of activity which is
distinct from the term « seizure » which we find in the Fourth Amendment's phrase « 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, as « aggregation » is used here it's presented devoid of any qualifying adjective, as though « aggregation » is presumptively a neutral activity.

 

This approach misdirects our attention, focusing on an activity stripped of the vital context which the Fourth Amendment addresses . The importance of the
Fourth Amendment relates to several things, all of which concern the stated purpose of the Amendment --to ensure people's right to be
« secure in their persons, houses, papers and effects » --those concern « who may conduct searches and seizures », and « how and

under what conditions and circumstances ».

 

Therefore, central to the point is that it is, FIRST, the police or state « security » authorities which are doing the seizure---the « aggregation »,
and not the fact that the photos were originally made « innocently ». To fail to recognize the key factor of who is collecting, is to
proceed upon the naive assumption that what was first innocently produced by the acts of numerous private individuals, retains its
innocent character even when, « aggregated », seized first, then aggregated and finally indexed and stored for further
analysis and comparison. SECOND, in order to vindicate the meaning and purpose of the Fourth Amendment, it would seem that any
long-term stockage of data
gained from searches and seizures, beyond what is necessary for the use as evidence which first
occasioned the search and seizure, is inherently « unreasonable ». When the Fourth Amendment was drafted, the fruits of searches and
seizures were material—and, in general, when the search and seizure did not produce any actionable ground for prosecution, the materials
were restored to their owner(s). The idea that the government could and should keep original or copies and file them away permanently or
indefinitely beyond the time of the immediate purposes for which they were seized would have been viewed as both absurd and outrageously
contrary to any notion of « reasonable » seizure.


Similarly, even long afterphotography had become commonplace, people going about their business
in public places took little notice of whether and how they might becaptured in the focal lens of a photograper's camera. That is
because there existed no means for cameras and other tracking devicesto keep them under complete and constant surveillance wherever they
went outside of their homes. Thus, that there was no reasonableexpectation of privacy in the public square is simply a feature of a
now-outdated mode of life, that in which being out in public presented no automatic and constant liability that one's movements be
tracked and recorded and stored permanently for any and all conceivable and secret future use.


 

It is impliedly proposed here that this revolution in the capacity for surveillance, data seizure,collection, analysis and stockage is to be accepted matter-of-factly
for the way it devastates the singificance of the meaning and theintentions behind the Fourth Amendment. It is proposed here that
« reasonable » must depend on what the most invasive technology leaves less than completely compromised in its privacy and
confidentiality. It is proposed here that we take a view of ourprivacy rights as « reasonable expectations » which
leaves them as an appendage to technology's (and the political powerrelations behind it) imperatives.

 

In order to do that, we are apparently supposed to take these words,

« 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 read and interpret them in a naive and superficial way, stripped of the historical and political context
in which they were devised, proposed, debated and adopted, as a safeguard of an essential right to privacy against the extension of
the power of authority beyond a limit implied by the respect for that right to privacy. Intimately involved in such a lighter-than-air suspension of the context of reality is the very notion itself of "meta"-data. The Fourth Amendment is not concerned with the supposed "nature" ("meta" or non-"meta") of the data or the prodcuts of the "persons, houses, papers, and effects" seized but rather with whether or not the acts of search and seizure themselves are lawfully reasonable, and leave intact a "right to be secure from what is unreasonable".

Edited by proximity1
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What part of being secure does a photograph turned over to the government violate: your person, your house, your paper and/or your effects? How is it different than just having someone look at you?

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a photograph turned over to the government

 

The government's search for, and seizure of, that photograph, is what is under consideration. "Turned-over" is deliberately used to gain the advantage of a benign-sounding event. How was it "turned over"? The government sought those individuals potentially holding or those stationary photo recording devices potentially containing, the photographs for search and seizure of their contents. The search and the seizure themselves, unless founded on a reasonable cause by prior oath or affirmation, are "the parts" that violate one's right to be secure in one's person, home, papers and effects.

 

Upon what probable cause? No answer from you. What lunatic bomber? No answer from you. What credible evidence of a bomb's placement? No answer from you. What oath or affirmation?--as required prior to search or seizure. No answer from you.

 

I think that in addition to your posing questions, it's time you met your responsibility to answer questions posed you.

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a photograph turned over to the government

 

The government's search for, and seizure of, that photograph, is what is under consideration. "Turned-over" is deliberately used to gain the advantage of a benign-sounding event. How was it "turned over"?

 

A photo with you in it, not taken by you but by someone else. If I am permitted to turn the photo over without there being a warrant, there is no seizure of any of your property. Same thing if it's publicly posted to flickr or youtube, etc.

 

I deliberately did not use seized because that's not the scenario. If your picture is private data, the government can't look at it without a warrant. If there's a warrant, they can seize whatever is described in the warrant, privacy be damned, and it tells us nothing. So no, you are wrong. Turned over was deliberately used to prevent the goalposts from moving, as would happen with the word seized.

 

 

The government sought those individuals potentially holding or those stationary photo recording devices potentially containing, the photographs for search and seizure of their contents. The search and the seizure themselves, unless founded on a reasonable cause by prior oath or affirmation, are "the parts" that violate one's right to be secure in one's person, home, papers and effects.

 

Upon what probable cause? No answer from you. What lunatic bomber? No answer from you. What credible evidence of a bomb's placement? No answer from you. What oath or affirmation?--as required prior to search or seizure. No answer from you.

 

I think that in addition to your posing questions, it's time you met your responsibility to answer questions posed you.

 

If there is no seizure, no probable cause is required. It's a non-sequitur as far as I can see. Unless you can show that a picture of you somehow make you not secure in your person, which is what I asked, and you have not answered.

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> 63: Yes. I answered your question--see post N° 60.

 

But I'll rephrase and amplify what I wrote there:

 

the police authorities (at every level of the government system) have a mission: to investigate criminal acts, to detect crime and of course, where practical, to prevent a crime's commission in so far as that can be done lawfully. (Putting everyone in prison preëmptively is an illegal way to "prevent crime" and should be regarded as--or once should have been regarded as--a crime in itself).

 

The so-called "Intelligence agencies," that is, espionage organizations of the state, have a different mission from that of the police authorities. But since both the police and spy orgs are in the business of gathering and interpreting information (criminal evidence in the case of the police and virtually anything in the case of spies), both police and spy agencies of the government are bound by the Fourth Amendment which regulates the government, prohibits its agents from violating a right described as : "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures"...

 

The Fourth Amendment doesn't say "the police" may not violate this right. It does not say "espionage agencies" may not violate this right. It says, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated." Period.

 

So, unless the police have a criminal investigation of a crime underway, they have no legitimate interest in receiving and retaining a document or its copy, and, thus: what is their presumable interest in a photo "turned over" by a third party? (I'm putting QUESTIONS TO YOU IN BOLDFACE SO YOU WON'T MISS THEM.) I ask you AGAIN: What crime? What lunatic? What bomb? Where is the probable cause in your scenario that a crime has been or is planned to be committed?

 

You wrote: "photo with you in it, not taken by you but by someone else. I deliberately did not use seized because that's not the scenario.

 

"If your picture is private data, the government can't look at it without a warrant."

 

No, you're wrong. Private data or not, the police may not do anything which violates Fourth Amendment rights-- described above. The police are not a library or a data-bank. They are a crime-investigation organization and they are bound legally to carry out their mission within the confines of the Fourth Amendment.


RE our topic: "Is metadata private?" I've asked,

  • What makes "metadata" inherently distinct from plain old everyday "data"?

and I now ask:

  • Why shouldn't we regard "metadata" as a term worthy of inclusion in a dictionary of Orwell's (1984) "Newspeak" along with such weasel terms as "enemy combattant", "enhanced interrogation techniques" and "extraordinary rendition" ?

 

From Wikipedia, on "Newspeak":

 

a reduced language created by the totalitarian state as a tool to limit free thought, and concepts that pose a threat to the regime such as freedom, self-expression, individuality, peace, etc. Any form of thought alternative to the party’s construct is classified as "thoughtcrime."

 

And, from Orwell's 1984 :

 

 

excerpted from "Appendix / The Principles of Newspeak"


"The purpose of Newspeak was not only to provide a medium
of expression for the world-view and mental habits proper to
the devotees of Ingsoc, but to make all other modes of thought
impossible. It was intended that when Newspeak had been adopted
once and for all and Oldspeak forgotten, a heretical thought --
that is, a thought diverging from the principles of Ingsoc --
should be literally unthinkable, at least so far as thought is
dependent on words. Its vocabulary was so constructed as to
give exact and often very subtle expression to every meaning
that a Party member could properly wish to express, while
excluding all other meanings and also the possibility of
arriving at them by indirect methods. This was done partly by
the invention of new words, but chiefly by eliminating
undesirable words and by stripping such words as remained of
unorthodox meanings, and so far as possible of all secondary
meanings whatever. To give a single example. The word
free still existed in Newspeak, but it could only be
used in such statements as 'This dog is free from lice' or
'This field is free from weeds'. It could not be used in its
old sense of ' politically free' or 'intellectually free' since
political and intellectual freedom no longer existed even as
concepts, and were therefore of necessity nameless. Quite apart
from the suppression of definitely heretical words, reduction
of vocabulary was regarded as an end in itself, and no word
that could be dispensed with was allowed to survive. Newspeak
was designed not to extend but to diminish the range of
thought, and this purpose was indirectly assisted by cutting
the choice of words down to a minimum.


Newspeak was founded on the English language as we now
know it, though many Newspeak sentences, even when not
containing newly-created words, would be barely intelligible to
an English-speaker of our own day. Newspeak words were divided
into three distinct classes, known as the A vocabulary, the B
vocabulary (also called compound words), and the C vocabulary.
It will be simpler to discuss each class separately, but the
grammatical peculiarities of the language can be dealt with in
the section devoted to the A vocabulary, since the same rules
held good for all three categories.
"

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The Fourth Amendment doesn't say "the police" may not violate this right. It does not say "espionage agencies" may not violate this right. It says, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated." Period.

I'm not making any distinction between police and other government agencies.

 

So, unless the police have a criminal investigation of a crime underway, they have no legitimate interest in receiving and retaining a document or its copy, and, thus: what is their presumable interest in a photo "turned over" by a third party? (I'm putting QUESTIONS TO YOU IN BOLDFACE SO YOU WON'T MISS THEM.) I ask you AGAIN: What crime? What lunatic? What bomb? Where is the probable cause in your scenario that a crime has been or is planned to be committed?

I will answer AGAIN, and put it in bold, so you don't miss it. There is no probable cause, there is no warrant.

 

Where is the search or seizure in looking at a photograph?

You wrote: "photo with you in it, not taken by you but by someone else. I deliberately did not use seized because that's not the scenario.

 

"If your picture is private data, the government can't look at it without a warrant."

 

No, you're wrong. Private data or not, the police may not do anything which violates Fourth Amendment rights-- described above. The police are not a library or a data-bank. They are a crime-investigation organization and they are bound legally to carry out their mission within the confines of the Fourth Amendment.

I am not claiming that the government can violate your rights.

 

What I am asking you is: where is the violation, in looking at a photograph? How has your security in your person, house or possessions been violated? You have already acknowledged that a photo does not afford an expectation of privacy, thus viewing a photograph is is not a search. That means no violation of the fourth amendment, just as "plain view" observation is not a violation of the fourth amendment.

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I'm not making any distinction between police and other government agencies.

 

 

I will answer AGAIN, and put it in bold, so you don't miss it. There is no probable cause, there is no warrant.

 

Where is the search or seizure in looking at a photograph?

 

I am not claiming that the government can violate your rights.

 

What I am asking you is: where is the violation, in looking at a photograph? How has your security in your person, house or possessions been violated? You have already acknowledged that a photo does not afford an expectation of privacy, thus viewing a photograph is is not a search. That means no violation of the fourth amendment, just as "plain view" observation is not a violation of the fourth amendment.

 

Your argument is a model of bad faith. You write, "I am not claiming that the government can violate your rights," which is only true because you use "claiming" as in an open, frank expression of what one contends, argues. But you don't do that. You don't state openly the foundations of your reasoning and defend them on their merits. Instead, you leave the reader the work of excavating your comments for the unstated implications of your views, and then, when those are presented to you overtly, you retreat into saying "I am not claiming...." That is hypocrisy, or arguing in blatant bad faith. You don't recognize the right (i.e. the 4th amendment right) in the first place except in your own peculiar private version of it , and you skip the part where you demonstrate in argument why and how that peculiar interpretation you follow is or ought to be accepted as valid. Thus, you avoid a need to claim that the government may violate it. This is straight out of "Newspeak".

 

Above, you'd written,

 

(post 63) "If I am permitted to turn the photo over without there being a warrant, there is no seizure of any of your property."

 

That's a conditional statement. Only here, in post 65 do we finally learn that, as a matter of fact, in your scenario:

 

"There is no probable cause, there is no warrant." That is a first-time statement that your scenario does not include probable cause (i.e. to believe that a crime has been committed or is in the planning). That is a first-time statement that your scenario does not include any warrant.

 

So, as a scenario, we have No (stated, avowed,) probable cause of a crime's commission or planning, No warrant for the collection, inspection, or keeping of "evidence"---how can there be "evidence" if there is no investigation of an actual or potential crime?

 

Thus, with no PC, no warrant, and no crime, why would the police accept or take an interest in the presupposed photo? AND WHY & HOW SHOULD THEY HAVE A LEGAL RIGHT TO DO SO?

 

RE:

"You have already acknowledged that a photo does not afford an

expectation of privacy, thus viewing a photograph is is not a search.

That means no violation of the fourth amendment, just as "plain view"

observation is not a violation of the fourth amendment."

 

Wrong. I wrote that, over a century ago, (that is, before the common practice of even the police routinely making photos at the booking of a suspect) people had neither the suspicion-- nor the ground for it-- that their photograph, taken, in open, broad view and spontaneously and without their permission, by the rare artist-photographer, should or could be part of a vast photo databank held by the authorities. I wrote that any common person's assumption today that such a publicly taken photo of a public scene, including one's self, is not an infringement of the right of privacy is nothing but a throw-back to that earlier time's views of it.

 

On the contrary, my position is, indeed, that as concerns the authorities--a point I have stressed here, and which stress you have repeatedly ignored-- the "mere" (LOL!) "viewing a photograph" is a search--within the terms of the Fourth Amendment--and thus an illegal search, unsupported by cause or warrant.

 

The police have no legitimate ground to even take the tender of the photo, let alone view it. No crime investigation, no probable cause--IT'S THEN NOT A POLICE MATTER.

 

Is that very clear?

 

ETA: I've just had another revelation of the real underlying foudations of your line of bad-faith arguing. And it has hit me like a ton of bricks. Briefly, you apparently believe that the first onus--the one that counts most-- is inherently on the public, individual or group, to demonstrate an actual violation of their right of privacy, rather than, as the 4th Amendment has it, the onus being on the government authorities to show cause for any overt act which inspects a person, or his home, papers, or effects.

 

But this turns the 4th Amendment's reasoning and purpose upside down.

 

When do you answer MY questions? (@ 64) :

 

RE our topic: "Is metadata private?" I've asked,

  • What makes "metadata" inherently distinct from plain old everyday "data"?

and I now ask:

  • Why shouldn't we regard "metadata" as a term worthy of inclusion in a dictionary of Orwell's (1984) "Newspeak" along with such weasel terms as "enemy combattant", "enhanced interrogation techniques" and "extraordinary rendition" ?
Edited by proximity1
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Your argument is a model of bad faith. You write, "I am not claiming that the government can violate your rights," which is only true because you use "claiming" as in an open, frank expression of what one contends, argues. But you don't do that. You don't state openly the foundations of your reasoning and defend them on their merits. Instead, you leave the reader the work of excavating your comments for the unstated implications of your views, and then, when those are presented to you overtly, you retreat into saying "I am not claiming...." That is hypocrisy, or arguing in blatant bad faith. You don't recognize the right in the first place except in your own peculiar private version of it , and you skip the part where you demonstrate in argument why and how that peculiar interpretation you follow is or ougt to be accepted as valid. Thus, you avoid a need to claim that the government may violate it. This is straight out of "Newspeak".

 

 

I am not claiming that the government can violate your rights. I am ASKING where the violation is, because I don't know the answer to the question. That's why I ask questions. That's a weird definition of of bad faith, IMO. So either you have a weird definition of bad faith, or you're just doing a bad job of trying to divine my personal motivations. Maybe you should stop.

 

 

 

Above, you'd written,

 

 

That's a conditional statement.

 

Yes, a conditional statement. Based on the condition of the scenario I proposed. IF that scenario is in place, I want to know where your rights have been violated.

 

 

Only here, in post 65 do we finally learn that, as a matter of fact, in your scenario:

 

"There is no probable cause, there is no warrant." That is a first-time statement that your scenario does not include probable cause (i.e. to believe that a crime has been committed or is in the planning). That is a first-time statement that your scenario does not include any warrant.

 

Well yeah, other than I said that in the first post where I proposed the scenario "you have no expectation of privacy when you show your face on a public street, and the police do not need probable cause to look at these data"

 

And again in post 63 "If there is no seizure, no probable cause is required."

 

So, as a scenario, we have No (stated, avowed,) probable cause of a crime's commission or planning, No warrant for the collection, inspection, or keeping of "evidence"---how can there be "evidence" if there is no investigation of an actual or potential crime?

 

A bombing is not a potential crime? The police have no obligation to secure an area where people gather and prevent such an incident from happening? A bombing in a public place is so unlikely that we can safely say it would not happen? The police could only act if they had evidence that a bombing might occur?

 

 

Thus, with no PC, no warrant, and no crime, why would the police accept or take an interest in the presupposed photo? AND WHY & HOW SHOULD THEY HAVE A LEGAL RIGHT TO DO SO?

 

Police cannot look for unusual activity while out on patrol, until they have gotten a report of a crime?

 

Your position runs contrary to my understanding of what police do, and are allowed to do.

 

 

RE:

 

Wrong. I wrote that, over a century ago, (that is, before the common practice of even the police routinely making photos at the booking of a suspect) people had neither the suspicion-- nor the ground for it-- that their photograph, taken, in open, broad view and spontaneously and without their permission, by the rare artist-photographer, should or could be part of a vast photo databank held by the authorities. I wrote that any common person's assumption today that such a publicly taken photo of a public scene, including one's self, is not an infringement of the right of privacy is nothing but a throw-back to that earlier time's views of it.

 

How has the expectation of privacy changed? How can you seriously admit that there is no expectation of privacy, and then assert that there is an expectation of privacy? To me the ubiquity of cameras lessens any naive expectation of privacy. I don't see any argument that the expectation should increase, and certainly not any legal ruling to that effect.

 

On the contrary, my position is, indeed, that as concerns the authorities--a point I have stressed here, and which stress you have repeatedly ignored-- the "mere" (LOL!) "viewing a photograph" is a search--within the terms of the Fourth Amendment--and thus an illegal search, unsupported by cause or warrant.

 

And if you are going to assert this as a fact, I am asking you to support this with something other than a hand-wave. or just admit that it's your personal opinion of what should be, and not actually supported by the law.

 

 

The police have no legitimate ground to even take the tender of the photo, let alone view it. No crime investigation, no probable cause--IT'S THEN NOT A POLICE MATTER.

 

Is that very clear?

 

I refer you to the questions above about whether police can only respond to reports of crime after they've been committed.

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Oh for pity's sake, no--------

 

the hypothetical's "conditional" status is ONE THING. But, WITHIN THAT, you posited AS A CONDITIONAL FEATURE of the scenario, the "person" who tenders the photo(s) as (already in the scenario's set-up)

 

"If I am permitted to turn the photo over without there being a warrant, there is no seizure of any of your property."

 

in this statement, the "I" is taken to refer to the "person" who tenders the photo(s) as (already in the scenario's set-up).



RE :

"Well yeah, other than I said that in the first post where I proposed the scenario "you
have no expectation of privacy when you show your face on a public
street, and the police do not need probable cause to look at these data"

 

which is false--"these data" are either sought by the police (hence, a "search") or as your fanatsy has it, tendered by a third party, absent any apparent demand on the part of the police nor, significantly, any affirmation on the tender's part that this photo relates to an affirmation of information about the commission of a crime (past) or its probable commission (future).

 

You haven't given us that in the scenario. Instead, you posit that, for no apparent reason, a person presents the police with "photos" of a public place, and a crowd of as-yet anonymous people in it. At this point, unless the agent of the photo tender presents the police with a statement about a crime or its planning, no, they have no probable cause to inspect the photo(s).


A bombing is not a potential crime?

Your scenario has no bombing. Where is it? I've repeatedly asked you this. You have no answer.

 

The police have no obligation to secure an area where people gather and prevent such an incident from
happening?

 

Absent some information of a crime's planned commission in that area? No, they don't.

 

A bombing in a public place is so unlikely that we can safely say it would not happen?

 

No. In your scenario, as you've set it out----i.e. in the "present" of your scenario, there is no bombing. There is no report of one. There is no report of a plan of one. Hence, IN YOUR SCENARIO AS YOU WRITE IT,

 

Corrrect: the police have neither the obligation to "secure" that area nor even to suppose that it needs "securing".

 

The police could only act if they had evidence that a bombing might occur?

 

No. They don't need "evidence". But they do need something on which to act, and that, while not being "evidence" is some report or affirmation---it could even be from a police officer on patrol. But that officer has to discover something! He has to notice, see, something, or have something more than a completely vacant and delusional fancy to "secure the area". If he see something suspicious, then that is a ground on which to act.

 

YOUR SCENARIO AS GIVEN PRESENTS NO SUSPICION ON WHICH TO ACT.



RE: "Police cannot look for unusual activity while out on patrol, until they have gotten a report of a crime?"

 

That is, again, another example of bad-faith "argument".

 

No one has claimed that. I haven't claimed it. Of course the police can "look for UNUSUAL ACTIVITY" while on patrol.

 

It's your scenario. Where, in it, is the "unusual activity"? Nowhere. You presented none---well, I take that back: you've conjured a third party who, completely without stated reason or explanation, just shows up offering the police photo(s) of a crowded public place, that person is sort of, kind of, "unusual."

 

Got anything better to offer the reader here?



" How can you seriously admit

that there is no expectation of privacy, and then assert that there is
an expectation of privacy?

 

 

more bad faith on your part: I referred to a centuries-past attitude about the concern or lack of it, for people in public to be photographed. They didn't see it as an infringement of their privacy because, unlike today, they couldn't imagine their every movement being photographed, recorded, and stocked for official government or private commercial uses.


"How has the expectation of privacy changed?"

 

Today, people live with their every movement being photographed, recorded, and stocked for official government or private
commercial uses--often without their expressed consent. And, indeed, for this reason, legal scholars are moving away from "expectation of privacy" as a sane, let alone useful, guide to what is private.

 

 

To me the ubiquity of cameras lessens any naive expectation of privacy. I don't see any argument that the expectation should increase, and certainly not any legal ruling to that effect."

 

That's the problem here. You don't see, won't see, can't see. You're in this thread "not to see"--your part here is one of blatant bad faith.

Edited by proximity1
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Oh for pity's sake, no--------

 

the hypothetical's "conditional" status is ONE THING. But, WITHIN THAT, you posited AS A CONDITIONAL FEATURE of the scenario, the "person" who tenders the photo(s) as (already in the scenario's set-up)

 

"If I am permitted to turn the photo over without there being a warrant, there is no seizure of any of your property."

 

in this statement, the "I" is taken to refer to the "person" who tenders the photo(s) as (already in the scenario's set-up).

 

 

RE :

 

which is false--"these data" are either sought by the police (hence, a "search") or as your fanatsy has it, tendered by a third party, absent any apparent demand on the part of the police nor, significantly, any affirmation on the tender's part that this photo relates to an affirmation of information about the commission of a crime (past) or its probable commission (future).

 

The police could not, or ever have asked for a picture, even if they are not sure a crime has been committed? OK, if that's the sticking point, then let's say the police set up a camera themselves. Closed-circuit TV, to monitor the crowd in a public area. No probable cause that a crime has been committed.

 

This is not hypothetical

http://mpdc.dc.gov/page/mpdcs-closed-circuit-television-cctv-system

 

(and was in the works prior to 9/11/01)

 

 

Your scenario has no bombing. Where is it? I've repeatedly asked you this. You have no answer.

 

A potential bombing. One that might occur. i.e. as in a lunatic may have planted a bomb. (Which has only been in the scenario since … the beginning)

 

 

 

Absent some information of a crime's planned commission in that area? No, they don't.

 

Well, then you and I have some very different opinions about the function of the police.

 

 

No. In your scenario, as you've set it out----i.e. in the "present" of your scenario, there is no bombing. There is no report of one. There is no report of a plan of one. Hence, IN YOUR SCENARIO AS YOU WRITE IT,

 

Corrrect: the police have neither the obligation to "secure" that area nor even to suppose that it needs "securing".

 

Is there any chance you are unaware of the bombings that took place in Boston recently? If you are, then it seems you are arguing that the police had no obligation to try and secure the area. And arguing that even knowing that such a bombing occurred, that there is no reason for them to think that it might need securing.

 

I have no response to that, other than: wow.

 

 

No. They don't need "evidence". But they do need something on which to act, and that, while not being "evidence" is some report or affirmation---it could even be from a police officer on patrol. But that officer has to discover something! He has to notice, see, something, or have something more than a completely vacant and delusional fancy to "secure the area". If he see something suspicious, then that is a ground on which to act.

 

YOUR SCENARIO AS GIVEN PRESENTS NO SUSPICION ON WHICH TO ACT.

 

 

RE: "Police cannot look for unusual activity while out on patrol, until they have gotten a report of a crime?"

 

That is, again, another example of bad-faith "argument".

 

No one has claimed that. I haven't claimed it. Of course the police can "look for UNUSUAL ACTIVITY" while on patrol.

 

So why can't they look for unusual activity in a photograph?

 

 

 

 

It's your scenario. Where, in it, is the "unusual activity"? Nowhere.

 

There is not necessarily any unusual activity in a police patrol, either. What's the difference?

 

 

 

more bad faith on your part: I referred to a centuries-past attitude about the concern or lack of it, for people in public to be photographed. They didn't see it as an infringement of their privacy because, unlike today, they couldn't imagine their every movement being photographed, recorded, and stocked for official government or private commercial uses.

 

Again I will point out that these are feelings, not legal arguments. Where is the search or seizure in looking at a photograph?

 

 

 

 

 

Today, people live with their every movement being photographed, recorded, and stocked for official government or private

commercial uses--often without their expressed consent. And, indeed, for this reason, legal scholars are moving away from "expectation of privacy" as a sane, let alone useful, guide to what is private.

 

Who are these legal scholars and what are the court cases they have won with these arguments?

 

 

That's the problem here. You don't see, won't see, can't see. You're in this thread "not to see"--your part here is one of blatant bad faith.

 

I can't see anything that hasn't been shown to me. I haven't run across them myself, hence the question.

 

What I have found is that you have no legal expectation of privacy out in public and when you willingly share information with a third party, making the gathering of such information not a violation of the fourth amendment.

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I think it's really hard to nail down exactly what we call "metadata" and even harder to be certain what that word will mean over time, but for the moment I think of it like this:

1) Metadata can mean routing information which physically *has* to be public to propagate through a physical or digital third party network.
examples:
- physical mail with external address, return address, postage and time stamp.
- HTTP/HTTPS GET requests, including any data parameters in the URL (page=3&search=foo, etc), and headers

- HTTP POST requests, (header and body) which due to their plaintext nature, are essentially like writing data on a postcard and mailing it

- HTTPS POST requests (URL, headers, data like content length but excluding message content)

 


2) Metadata can mean preference information, which doesn't need to be public but for convenience, often is. This may be a publicly visible HTTP header cookie passed in plain between a server and a client for session management (identifying the session, if not the user), it could be a language preference flag, or geolocation data, or even mobile screen size data to fine-tune returned content.

 

Preference data may or may not be private, because it's up to the telco or webservice provider how to manage preference data. Since web browsers and smart phones are "thin client devices" the provider has to transmit their own architecture (HTML and JavaScript, to dynamically build a sessionable client) which can use any number of supporting technologies - each with physical, real world impacts on data promiscuity.

 

 

If a telco or webservice chooses to push personally identifying information over public networks (or within the routing layer (headers) of HTTP requests) then all that data becomes public, whether it is strictly considered metadata or not.

 

3) Aggregate metadata - meaning new data reduced from usage summaries can be in two forms:
a) aggregate data targeted against single user/device/ip/cookie/hashcode showing their statistics, whether they are named or not.
b) aggregated data from multiple users, targeted against a search term, a location, or some other numerically reducible factor.

 

In the case of aggregate metadata, it uses existing data - then applies one binding constraint to one "open tally" so you can usefully get a wide net of data about the usage of one target, or a wide net of targets utilizing the constrained parameter.

 

Examples could be a specific phone's total local calls, total overseas calls, total overseas calls to a specific country, or all the phone numbers in region A that called region B and the sum total of calls each placed that matched the criteria.

 

 

 

We wouldn't have to be so worried about privacy if we as individuals felt like we were personally part of the conversation when we "decide" what data we transmit in order to cope with the stresses of the day... but we rarely can even make sense of ToS and privacy agreements, let alone participate in the conversation with our providers.

 

Due to the flexibility communication providers have in what metadata is pushed through which mechanism (thereby creating physical data exposure) we easily find their decisions result in whether we have an expectation of privacy regarding that data. We as users discover that certain communication frameworks do more or less work handling the data, and as such create "effective public ubiquity" out of "metadata" that would otherwise be very private.

 

 

 

 

A secondary agitating factor, that creates a huge impact, is how we as users agree to install software (like browser extensions, free video games, etc) that are built on data mining models. They push often sensitive data through less than secure mechanisms, which then store and resell that data - allegedly anonymous, yet valuable and easy to tie to specific users when desired for marketing.

 

When "the market speaks" and people want free stuff in exchange for their data habits, it makes incredibly easy for private companies, foreign governments (or even Chinese hackers) to acquire these mountains of personal information about American individuals.

 

Since we as citizens have no control over this beyond "opting out of the net" we get stuck between trying to keep our government out of our data, while allowing far less reputable entities access to its deepest depths.

 

This creates an impossible mandate for the NSA, because if hackers can get top secret files from pentagon contractors, they can get any amount of data-mining material they want as well. If the American National Security apparatus wants to be aware of the data foreign agencies use to make their decisions, it's next to impossible under our current infrastructure to not include lots of data on Americans.

 

 

 

 

It's also worth noting: While we discuss what privacy we are sacrificing in the name of "ubiquitous security" that programs like PRISM create very severe weak-points, such as the inability to track Apple's iMessage contents, due to end-to-end hardware embedded encryption.

 

This is like having a massively intrusive gun registry, while allowing gun registry loopholes for anyone who knows how to find them.

 

Had any of the "50 prevented terrorist attacks" cited by the PRISM proponents used iPhones with iMessage to pass their data, the entire security apparatus would have been preoccupied with the data it could read from benign sources, while oblivious to the fact that they still face physical data barriers in the manner of physically embedded encryption that can entirely circumvent the data dragnet.

 

 

To highlight just how bad this problem is, consider former CIA Director David Petraeus:

 

* he shares private messages via gmail with his mistress by using the "drafts" folder and overwriting the contents of a single message, to "discreetly" communicate.

 

* his mistress sends a threatening email to another woman he is involved with.

 

* the other woman calls a friend in the FBI to find out who sent the email

 

* FBI finds out that not only the woman behind the threatening email, but that she is having an affair with Petraeus as documented in their shared gmail account.

 

 

The most disconcerting thing - is that the Director of the CIA tried to hide is personal communications, and not only did he get caught in the data net, but even basic awareness of the iMessage "dragnet hole" could have guaranteed him physical privacy.

 

If we cannot trust the Director of the CIA to be aware of what data ends up in the net, and what data is "identical in nature to what we want to track - but physically untraceable " how can we have a cogent conversation about metadata?

 

 

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What I have found is that you have no legal expectation of privacy out

in public and when you willingly share information with a third party,

making the gathering of such information not a violation of the fourth

amendment

Your argument boils down to an assertion that whatever the police can manage to establish for a while without immediately creating outrage and lawsuits becomes the legal "expectation".

 

In that way, any aspect of an authoritarian police state surveillance system could be eased past the Constitution, merely by setting it up and getting away with it for a while.

 

As was partly established in Minnesota with the vehicle and driver's license info,

 

there is nothing obviously false about the claim that people have a reasonable and legally enforceable expectation that agents of their government will not use its power to follow them around, obtain "metadata" from their phone calls, obtain and compile their entire use of the internet, aggregate and compile and analyze information about their entire life as detectable from any location outside the walls of their house,

 

on the grounds (among others) that such behavior by such agents is in violation of the Constitutional prohibition against unreasonable or unwarranted search and seizure, and an invasion of privacy, and a bad thing to allow.

 

That is, a violation of people's expectations was discovered in government agent behavior that could have been easily anticipated by anyone, and was warned against by some, but not actually recognized by its victims until it had become ordinary and common.

 

And this possibility - that legally enforceable "expectations" can be discovered after the fact, that what people have a right to expect in the way of privacy can be discovered after violations have become a kind of norm, and enforced retroactively - is in my opinion the reason these programs are always kept secret. They can be shut down by an offended public, on legitimate Constitutional grounds as well as ordinary reason and sense, so that public is kept in the dark, deliberately misinformed, propagandized.

 

That is dangerous behavior to allow one's government.

 

 

I think it's really hard to nail down exactly what we call "metadata"

and even harder to be certain what that word will mean over time,

Creating that kind of uncertainty is ordinary police state behavior. Note that we still do not have a complete description of what has been collected so far.

 

A discussion focused and limited by the government's use of such data in antiterrorism efforts misses several large issues, beginning with the historically standard and dominant employment of these kinds of surveillance techniques by essentially all governments that have ever employed them for anything, the actual political role of secrecy and uncertainty in their scope, and so forth.

Edited by overtone
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Your argument boils down to an assertion that whatever the police can manage to establish for a while without immediately creating outrage and lawsuits becomes the legal "expectation".

I have backed up my findings with links to the supreme court decisions, so this is hardly "my assertion". Outrage is sorta beside the point here. I'm not asserting that anyone should like it, or even saying that I like it. But what I suspect is that what most people really creeped out about is the scope. If one cop strolls through the playground and gives everyone the once-over to see that everything is OK, is fine, and perhaps reassuring. If 100 cops were doing it, it would be creepy. But it's not a violation of your rights.

 

In that way, any aspect of an authoritarian police state surveillance system could be eased past the Constitution, merely by setting it up and getting away with it for a while.

 

As was partly established in Minnesota with the vehicle and driver's license info,

To what are you referring? I'm not familiar with this issue.

 

there is nothing obviously false about the claim that people have a reasonable and legally enforceable expectation that agents of their government will not use its power to follow them around, obtain "metadata" from their phone calls, obtain and compile their entire use of the internet, aggregate and compile and analyze information about their entire life as detectable from any location outside the walls of their house,

 

on the grounds (among others) that such behavior by such agents is in violation of the Constitutional prohibition against unreasonable or unwarranted search and seizure, and an invasion of privacy, and a bad thing to allow.

Some of that is obviously false, and I've provided the links to demonstrate that.

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« The reasonable expectation of privacy test has led to a contentious
jurisprudence that is riddled with inconsistency and incoherence.
Debates rage over whether particular government information gathering
activities invade 'privacy.' I have been a frequent participant in
these discussions, often criticizing judicial decisions under the
Fourth Amendment as lacking a progressive understanding of privacy in
the light of modern technology.



« What makes for a great intellectual game does not make for good law. Few
commentators are particularly fond of Fourth Amendment law. U.S.
Supreme Court decisions applying the reasonable expectation of
privacy test have been attacked as 'unstable' and 'illogical,' and
even as engendering 'pandemonium.' As one commentator has aptly
observed, '[M]ost commentators have recognized that regardless of the
political palatability of recent decisions, [F]ourth [A]mendment
doctrine is in a state of chaos...' »

(p. 1512)

 

« Looking at expectations is the wrong enquiry. The law should protect certain
information regardless of whether people expect it to be private or
not. What matters is what people desire. We look to the law not
just to preserve the status quo, but to change it and to shape
society into what we want it to be. »

 

« Imagine you had a choice between which of the following two government
information-gathering activities should receive Fourth Amendment
protection : (1) government agents at the border squeeze the
outside of people's luggage without opening it ; or (2) the
government launches a new satellite and surveillance camera system
that can track and record all citizens' activities in public
throughout their lifetimes.

 

« The first activity is regulated by the Fourth Amendment (Bond v. U.S.,
529 U.S. 334, 336 (2000) ) In 2000, in Bond v. United States, the
U.S. Supreme Court … held that...bus passengers do not expect their
bags to be squeezed. »

 

« The second activity, however, likely would not be regulated by the Fourth
Amendment. The Supreme Court has concluded that people lack a
reasonable expectation of privacy in being observed in public. In
1983, in
United States v. Knotts, the Court held that people lack a
reasonable expectation of privacy when the government tracks their
movements outside their home.

( pp. 1524-1525 )


...


« Currently, the Fourth Amendment remains the primary regime for regulating
government information gathering. Certain forms of government
information gathering (such as wiretapping and bugging), among other
things) are regulated by statute, but most are regulated by the
Fourth Amendment or nothing at all.


 

« A pragmatic approach to the Fourth Amendment recognizes this reality.
We should sweep aside all the tests for Fourth Amendment coverage,
stop all the game-playing, and start focusing on the hard practical
issue of how best to regulate government information gathering. The
Fourth Amendment should cover government information gathering
comprehensively rather than haphazardly. A simple tenet of
pragmatism is that when there is a problem, one should try to
understand it and then solve it.



« The Coverage Question should thus be an easy one. The Fourth Amendment
should regulate government information gathering whenever it causes
problems of reasonable significance. Government information
gathering often poses significant problems affecting freedom and
democracy. Government information gathering activities can invade
privacy and inhibit freedom of speech and association. They make
people more frightened to explore ideas. » ...

(pp; 1527-1528)

Solove, (2010) "Fourth Amendment Pragmatism"

Edited by proximity1
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"The Supreme Court has concluded that people lack a reasonable expectation of privacy in being observed in public. In 1983, in United States v. Knotts, the Court held that people lack a reasonable expectation of privacy when the government tracks their movements outside their home."

 

Which is what I have been saying.

 

Your quote talks about what the law should do — it says that if you want to narrow this scope, you have to change the law to reflect that desire.

 

Was this meant to rebut anything I've been saying? Because it agrees with me.

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