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View Diary: No warrant required for private communications? (42 comments)

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  •  Problem is the Cloud, not Leahy. And related lega (6+ / 0-)

    l concept of what is 'private'.  

    The 4th A specfically seaks to 'letters', which clearly required a warrant as long as the US Post Office was thir only shipper.  But, entry UPS and the like private carriers and suddenly private actors where opening the mail and telling cops.  That is not government action, so not covered by the 4th.

    But, what if the cops asked UPS to look?  Well, combining cryto-fascist disdain for other people's rights, the Thug's love of all things Gov'mint... when going after 'those people', and the never ending quest to insulate private enterprise from any possibility of suit (even when - esepcialy when- totally justified), courts developed the notion that if you gave your private stuff to non-government 3rd party's who might open it... it ceased being private.  If its no longer private, its not a search for cops to ask and the 4th does not apply.  

    And what's worse, bc of lgal fictions, by giving it a 3rd party you obviously intended to give up your privacy with respect to the items and so have only yourself to blame.

    The Cloud is one big non-government 3rd party who might open your 'letters', so transmission thru or storage in pretty much means you wanted to have your 4th A rights trashed.

    Capice?, as Dons Scalia and Alito would say.

    The only limit is, of course, contract right - yeah, capitalism!
    Meaning, you have privacy here only if your 3rd party carrier contract prohibits them reporting to or co-operating with law enforcement with respect to your 'letters' (or more specifically their contents).  

    So 1% you say?  But of course...

    Where EPCA enters is that non-of this non-direct peer to peer stuff existed then, so while it statutorily mandated a warrant for some 3rd party controlled stuff (tho the 4th did not require it) it of couse did not do so for The Cloud.  

    Cops have used that unintended loophole to violate folks privacy for over a decade.  You seriously don't expect them to stop now... do you?

    And so it goes...

    •  problem is more SCA (1+ / 0-)
      Recommended by:
      Paper Cup

      see United States v. Warshak, 2010.

      under the provisions of the Stored Communications Act, federal law allows the government to just bypass any quaint, pre-911 "reasonable expectation of privacy," such as a person's email (postal mail, telephone calls).  however, Sixth Circuit Court of Appeals ruled No, You May Not to that two years ago:

      Given the fundamental similarities between email and traditional forms of communication [like postal mail and telephone calls], it would defy common sense to afford emails lesser Fourth Amendment protection....

      [T]he police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call--unless they get a warrant, that is. It only stands to reason that, if government agents compel an ISP to surrender the contents of a subscriber's emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement....

      for reference, SCA

      School district accused of spying on kids via laptop webcams.  here's a redacted PDF geek version, white paper of Lower Merion School District but the Sixth Circuit's ruling held:

      found that email users have a Fourth Amendment-protected reasonable expectation of privacy in the contents of their email accounts and that "to the extent that the SCA purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional.
      Senator Leahy? no, sir.  no way.
    •  There are ALEC boilerplate laws ready to pass (0+ / 0-)

      One has to do with forcing 3rd parties, public Internet providers especially, to grant unlimited warrantless access to everything in order to be registered to do business in a state.

      The bullshit is something about "guaranteed privacy protection". Typical ALEC nonsense.

      The "model legislation" is clearly unconstitutional, but that's their strategy. After the batshit crazy bagger legislatures shove this shit into the statutes, it becomes possible to violate our rights without penalty or risk. Police, for example, are not liable for enforcing laws that are overturned later. In most cases there's no harm (in the legal sense), so there's no penalty or awards for damages.

      Voter ID laws aqre an example. They were enacted right before the elections with the idea that it wouldn't be possible to overturn them in time. In most cases, they lost this bet.

      The warrantless wiretap and email spying is different. There's no way to know if one's rights have been violated. There is next to no chance that the law will be challenged in court if the activity is opaque. It would be difficult to show harm or damages, so the worst case result might be a stern lecture, a strongly worded letter, no penalty, and a partial or complete overtuning of the statute. That might leave part of the law in force with a new precedent established.

      Now, we've got a part of a bad law that will be difficult if not impossible to overturn. The ALEC secret laws account for this. Some of their evil plot stays in place.

      One irony is that these idiot wingers tend to eliminate funding to actually perform this stuff. No personnel, no training, no equipment. But that doesn't stop them. They can apply for homeland security grants for this shit. That money is now hidden in the secret federal military budget. Again, nobody knows until it's already happened.

      That's how our little town of 20k 75% Democratic voting people got a "free" Bearcat nerve gas resistant, bulletproof, assault vehicle complete with 50 caliber machine gun mounting hardware that suddenly showed up at the police parking lot. Nobody except the newly promoted police chief knew anything about this. The citizens were pissed and fought this for a few weeks, but the fact is that it was already a done deal and the feds won't take it back.

      In fairness, the beast will come in handy whenever the vulnerable areas of town get flooded because of heavy rain. The frame is high enough to navigate the flooded streets. And we know that flooding will happen more often.

      ALEC is a BIG problem.

      "Never wrestle with a pig: you get dirty and the pig enjoys it"

      by GrumpyOldGeek on Tue Nov 20, 2012 at 01:33:42 PM PST

      [ Parent ]

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