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Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by Lammy on Wednesday December 09, 2020 @01:44AM (#25355992)
This part of the article was most interesting to me:

"But the government stops short of using that law to collect the keywords people submit to internet search engines because it considers such terms to be content that requires a warrant to gather"

…because it turns out it is legal to go the other way around and ask the provider for a list of people who searched for a certain keyword: https://www.cnet.com/news/google-is-giving-data-to-police-ba...

"There are few things as revealing as a person's search history, and police typically need a warrant on a known suspect to demand that sensitive information. But a recently unsealed court document found that investigators can request such data in reverse order by asking Google to disclose everyone who searched a keyword rather than for information on a known suspect."

Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by peppermint_tea on Wednesday December 09, 2020 @04:44PM (#25365629)
yes, see how the collared rkelly accomplice here :

https://www.theregister.com/2020/10/09/google_search_arrest/

the judge are not supposed to allowed fishing expeditions, but in this case, the lookup requested was quite narrow. they still requested a search warrant.

Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by LMYahooTFY on Wednesday December 09, 2020 @11:30AM (#25360374)
Can someone make a case for why this should be used? I didn't read anything particularly compelling from the article.

This seems to contract the fence a lot closer to 'thought crime'.

Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by HappyDreamer on Thursday December 10, 2020 @02:07AM (#25370745)
Or "curiosity crime" too?
Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by mtgx on Wednesday December 09, 2020 @01:56AM (#25356052)
Isn't that the very definition of a fishing expedition?

"Let's find all the people that committed X crime in this database."

It's insane with how much of this unconstitutional stuff the U.S. government has gotten away with, all because Congress has suffered from systemic corruption for decades and no longer cares about the little guy, in the sense that it's no longer that dependent on the "little guy" to keep their jobs (as Larry Lessig would put it).

If they can get donations from rich corporations or friends, it's fine by them to screw over the little guy, because that's mostly all they need to keep their jobs.

Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by chalst on Wednesday December 09, 2020 @02:10AM (#25356115)
Currently prevailing constitutional law is that the right to privacy is an unenumerated right, one that is not explicitly set out in the Constitution but follows from common law and what the Constitution does say, especially the 4th and 5th Amendments [1]. That is the basis for Roe vs Wade, and so there's been a 40 year-long struggle by conservative lawyers that threatens this right.

[1]: https://en.wikipedia.org/wiki/The_Right_to_Privacy_(article)

Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by freeflight on Wednesday December 09, 2020 @05:32AM (#25357219)
The currently prevailing real world practice is how none of that applies to information voluntarily given to third parties, like Google, ISP, banks, phone providers, mail providers and whatnot [0].

[0] https://en.wikipedia.org/wiki/Third-party_doctrine

Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by rayiner on Wednesday December 09, 2020 @08:12AM (#25358102)
To be clear, it’s not just “conservative lawyers.” Roe v. Wade is the Lochner of liberal jurisprudence: https://en.wikipedia.org/wiki/Lochner_v._New_York. Both decisions only make sense under a sweeping libertarian view of the Constitution that isn’t broadly embraced anymore (if it ever was). Even Ginsberg didn’t like Roe’s privacy formulation: https://www.nytimes.com/2020/09/21/us/ruth-bader-ginsburg-ro...

> The way Justice Ginsburg saw it, Roe v. Wade was focused on the wrong argument — that restricting access to abortion violated a woman’s privacy. What she hoped for instead was a protection of the right to abortion on the basis that restricting it impeded gender equality, said Mary Hartnett, a law professor at Georgetown University who will be a co-writer on the only authorized biography of Justice Ginsburg.

Ginsberg realized that “equal protection” has the benefit of being in the constitution, while “privacy” nowhere appears in the document.[1] As the left has shifted away from social libertarianism, the ideological underpinning of Roe has become increasingly unsettled. That’s why in the recent confirmation hearings you only heard discussions of “super precedent” not any sort of debate about a sweeping privacy right.

[1] “Privacy” as an “unenumerated right” makes little sense under either liberal or conservative readings of the constitution. If you, like Scalia, believe that the “unenumerated rights” were those that were understood to exist at the time of the founding, then privacy isn’t one of those rights. But even if you subscribe to a “living constitution” view that fundamental rights can change over time—what’s the basis for your claim that “privacy” is generally recognized as a fundamental right today? I’m not aware of any constitutional court in the world that has embraced a notion of “privacy” broad enough to include both abortion and freedom from surveillance. Around the same time as Roe courts in Canada, France, Italy, and Germany declined to recognize any right to an abortion. The first three found it to be a legislative matter. The latter found legalizing abortion to be unconstitutional as a violation of the German Basic Law’s right to life.

Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by zdragnar on Wednesday December 09, 2020 @09:04AM (#25358532)
Small quibble: All rights precede the constitution, as the government is not the source of rights (they are natural or God-given, take your pick).

The constitution and subsequent amendments merely outline which rights the government may violate as a matter of necessity to run, and certain rights which it may not violate at all.

As you say, privacy is not mentioned; it does exist as a right but has no explicit protection except for the conditions in the 4th and 5th.

Of course, the federal government's role has grown so much, and the interstate clause abuse has basically expanded it's power to encompass anything and everything, it is not unreasonable to think that the first 10 amendments are the only rights we have anymore :/

Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by Clubber on Wednesday December 09, 2020 @10:07AM (#25359207)
>If you, like Scalia, believe that the “unenumerated rights” were those that were understood to exist at the time of the founding, then privacy isn’t one of those rights.

Scalia believed strongly in the right to privacy and privacy was certainly considered a right at the time of the constitution. I'm not sure where your source got that idea, but it's easy to document otherwise.

https://iapp.org/news/a/scalias-privacy-impact-will-be-felt-...

"A machine that sees through walls, reasoned Scalia, in order to capture the heat emanating from lamps used to grow marijuana, infringes upon individuals’ reasonable expectation of privacy, even when law enforcement is positioned outside the house."

http://caselaw.findlaw.com/us-supreme-court/533/27.html

"In United States v. Jones, probably the most important Fourth Amendment case since the 1967 decision in Katz v. United States, Scalia, writing for the majority, required the police to obtain a warrant prior to attaching a GPS tracker to a suspect’s car. While basing his opinion on narrow property grounds, Scalia rejected the government’s claim that individuals had no expectation of privacy while driving in broad daylight on city streets."

http://caselaw.findlaw.com/us-supreme-court/10-1259.html

"In Florida v. Jardines, Scalia, again writing a 5-4 decision supported by three liberal justices and Justice Thomas, held that police use of a trained detection dog to sniff for narcotics on the front porch of a private home was, indeed, a search within the meaning of the Fourth Amendment. The consequences of Jardines, as well as other dog sniffing cases, are far broader than for just narcotics searches. They implicate suspicion-less searches by other mechanized sniffers – for example, think about keyword searches of communications contents and metadata for cybersecurity or intelligence purposes."

http://caselaw.findlaw.com/us-supreme-court/11-564.html

Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by rayiner on Wednesday December 09, 2020 @11:35AM (#25360437)
As I said in my post, I'm talking about a notion of "privacy" broad enough to encompass both abortion and freedom from electronic surveillance.

Scalia believed in protection from government trespass on private property. That's a sort of "privacy" but its based on property rights, which was the original understanding of the fourth amendment.

Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by sagarm on Wednesday December 09, 2020 @01:11PM (#25361619)
Surely the natural privacy right to your own body is stronger than a privacy right conferred by ownership of property?
Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by dehrmann on Wednesday December 09, 2020 @02:46AM (#25356317)
> That is the basis for Roe vs Wade, and so there's been a 40 year-long struggle by conservative lawyers that threatens this right.

It takes a pretty creative reading of the constitution to infer a right to privacy, then infer that that grants the right to an abortion.

One of the criticisms of Roe is that states were legalizing abortion on their own already, so doing it through the court angered people more than if it had happened in each state, and it's build on shaky constitutional underpinning, so it's not necessarily a robust decision.

Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by humanrebar on Wednesday December 09, 2020 @06:53AM (#25357668)
Also note that constitutional amendments basically dropped off at that point as the legislature abrogated responsibility of protecting natural rights in favor of blaming others, especially the court system.

Why hasn't a right to privacy amendment been discussed at all? Or even a Privacy Rights Act? Those would clarify things too.

Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by rayiner on Wednesday December 09, 2020 @08:56AM (#25358433)
Because progressives (and I mean that in a negative way) don’t want to spend political capital on legislation when they can get courts to do that work for free.

I suspect that approach will have to change with the current composition of the Supreme Court.

Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by sagarm on Wednesday December 09, 2020 @01:13PM (#25361672)
Actually it's because the structure of the US Constitution makes it so rural types with an decidedly authoritarian bent have veto power over any amendments.
Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by humanrebar on Thursday December 10, 2020 @08:16AM (#25373345)
Rural voters are actually sympathetic to privacy concerns, at least on some issues like fun registries and healthcare records.

Note that the constitution gives any 25% of the country "veto power" as far as amendments go. Folks are, yes, going to actually have to find privacy laws and amendments that significantly benefit almost everyone. And actually convince them of that.

Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by dalbasal on Wednesday December 09, 2020 @08:36AM (#25358270)
IDK if this particular issue relates to money-politics that much. There's always something, but in this case the primary "lobby" is probably law enforcement and intelligence.

Corporations like google are somewhere between neutral and pro-privacy, or rather, against sharing their data with law enforcement.

Where money-politics does play, it's probably apathy related. This isn't an issue that donors care much about, therefore legislators may not care much.

Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by marcusverus on Wednesday December 09, 2020 @09:33AM (#25358840)
Agreed. I would attribute this to self-interest. No politician wants to be the guy who voted to "take tools away from the law enforcement", for fear they'll be attacked in the next election cycle for "aiding terrorists and human traffickers".
Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by rayiner on Wednesday December 09, 2020 @01:59AM (#25356066)
Can you explain to me what’s “unconstitutional” about this?
Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by jedberg on Wednesday December 09, 2020 @02:05AM (#25356090)
It's a violation of the fourth amendment. I'd consider it an unreasonable search.
Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by rayiner on Wednesday December 09, 2020 @07:50AM (#25357959)
What is being unreasonably searched and who does it belong to? The 4th amendment 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[.]

While digital records can easily be considered “papers” the function of the possessive adjective “their” in English hasn’t changed since 1791. A person can complain about an unreasonable search of their digital papers. They can’t complain about the digital search of someone else’s digital papers, like Google’s IP logs.

Section 215 used to allow the FBI to apply to the FISA court for “an order requiring the production of any tangible things”—a subpoena duces tecum. https://www.law.cornell.edu/wex/subpoena_duces_tecum

That legal instrument has been in use since the 1600s, and was imported into American law. Until the 20th century, nobody thought it was an unreasonable search under the 4th amendment for the government to subpoena documents where the person complaining about the subpoena had no property interest in the materials: https://commons.stmarytx.edu/cgi/viewcontent.cgi?article=105...

Of course under a “living constitution” style reasoning you can do whatever you want. (After all many people think there is a right to “privacy” in the constitution, when it never uses that word, but think there is no right to own firearms, which is right there in black and beige!) We are probably well on our way to that with the Supreme Court’s 2017 decision in Carpenter which found the fourth amendment protected cell phone location information. But if you care about what the Constitution actually says, it’s difficult to understand why a defendant can complain about a fourth amendment violation for a subpoena demanding that Google turn over Google’s IP logs.

Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by jedberg on Wednesday December 09, 2020 @02:57PM (#25363765)
It's tricky for sure, I agree. If I write a letter to a bank, it's certainly theirs to turn over. But if I put a letter to someone else in my safe deposit box at the bank, they can't turn that over without a specific warrant and probable cause.

Google searches are tricky for sure. I'm asking Google to look something up for me. What I looked up is their record.

But for example, video rentals are specifically protected as are library checkout records. Even though I've asked those places to do something for me, they can't reveal that.

So yeah, it's tricky, but at the end of the day it should probably count as my personal property.

Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by ClumsyPilot on Wednesday December 09, 2020 @08:25AM (#25358186)
That is why ownership of information is so important, in the extreme, is the data I have on dropbox mine, or can government search it and claim they are searching dropbox's data? I thi k all reasonable people would agree that in case of cloud storage I would have legal standing to sue if the search is unreasonable. I probably don't have that standing for IP logs, but there is loads of grey in between.

If you take the view GDPR takes, most data about the person is their data.

Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by rayiner on Wednesday December 09, 2020 @08:28AM (#25358208)
I agree the analysis is different under a GDPR view. And Congress could adopt a similar view and that would affect the 4th amendment analysis without changing the constitution.
Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by u801e on Thursday December 10, 2020 @08:42AM (#25373578)
The rest of the fourth amendment says:

>> 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.

I'm not a lawyer, but, from what I understand, probable cause refers to whether the law was violated by the party subject to the warrant. If Google has not violated the law, then what is probable cause referring to?

Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by Lammy on Wednesday December 09, 2020 @02:10AM (#25356116)
I'd consider it an unreasonable search as well, but I'd also like to hear a court agree with me.
Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by jimbob45 on Wednesday December 09, 2020 @02:06AM (#25356092)
Wouldn’t we have heard about this more from evidence presented in courts though? Like surely this is quantifiable if they’re actionably using ill-gotten evidence to prosecute.
Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by esja on Wednesday December 09, 2020 @02:16AM (#25356152)
Not if they are using parallel construction:

https://en.m.wikipedia.org/wiki/Parallel_construction

Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by Lammy on Wednesday December 09, 2020 @02:18AM (#25356161)
This looks like a job for Parallel Construction!

Why would they even risk showing ill-gotten evidence? It would be way easier to just keep that evidence secret and have a cop stand in the right spot to arrest the mark as they go about their usual routine. They probably "look suspicious".

Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by dundercoder on Wednesday December 09, 2020 @02:12AM (#25356124)
Not if it were part of the secret court proceedings happening under the same pretenses.
Re:U.S. Used Patriot Act to Gather Logs of Website Visitors by blackrock on Wednesday December 09, 2020 @04:21AM (#25356789)
> If they can get donations from rich corporations or friends

LOL. Welcome to democracy.