Posted by: theoptimisticconservative | December 28, 2013

Man, the state, and surveillance


Responses

  1. “Why shouldn’t the universe of “cyber-events” be something that the government, at least, has no prior rights over?”

    Mostly because the Left simply can’t tolerate the state not being involved in such things.

  2. Suppose I give you a package to deliver. You, being a dutiful and reliable delivery person, record the time and date you received the letter, the sender, the recipient and the time of delivery. You have no knowledge of the contents of the letter.

    Then, you are served with an order or subpoena to produce that record. I really have nothing to say about it, since it is not my record. (I may have a copy of it, provided by you with my bill, but the government doesn’t need my copy.) Now, suppose you are asked to produce your entire log of message delivery information for everybody you served. That doesn’t give me any more standing with respect to information relating to me.

    That’s analogous to the problem with telephone metadata. The people challenging the “search” are those who entrusted their telephone messages to a third party for delivery. What is needed is for the telephone company to refuse to turn over the records, so the courts can have a clean case for decision.

    But the telcoms probably won’t do that because they are too tightly tied to government, and could suffer grave consequences from government regulators.

    Government will also try to channel this into a mere business regulation rule — similar to requiring access to all firearms transfers or transactions subject to SEC rules.

    Not an easy question under the Fourth Amendment.

    What might be more interesting is the potential violation of the First Amendment by chilling the people’s right to associate with others, since associations are what the government is really trying to monitor here.

  3. I mostly like your analogy, Vin, with the following exception: a package of the kind you describe is a physical “thing,” which a great percentage of the time would be unrecoverable later, even if there were a record of its transport and delivery. It takes a whole separate effort to recover it, at any rate, which makes the system of probable cause and warrants meaningful.

    The “package” in question with IT metadata resides a click away from the metadata, in IT-World.

    If it wouldn’t be constitutional for the feds to inspect your physical commercial packages without probable cause, it wouldn’t be constitutional for them to inspect the contents of your IT “packages” without probable cause. Yet in the latter case, they are easily able to do so — and after they’ve collected and stored the trons, they can do so without the IT carrier even knowing about it.

    This difference can’t simply be ignored by the law. The activities of NSA employees who have exploited the surveillance program to spy on their spouses demonstrates that the easily breachable “wall” between metadata and content will be breached promptly, at least by some employees, whenever it can be.

    Moreover, it only takes one individual to breach a customer’s IT content security in this manner. When physical packages are at issue, it takes at least two. One has to be an employee of the delivery service. Again, the law has to take this into account. It would be mindlessly abstract to insist that the law covering the security of physical packages against unlawful search or seizure can provide the same level of security to IT “packages.”

    I realize your point is about the analogy of transport and delivery records, per se, between types of “delivery services.” The point I’m making is that sorting out that issue isn’t enough to settle the whole hash. IT content presents a special problem for the 4th amendment, because it has unique vulnerabilities that undermine our old-school protections.


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