The full text is:

"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."

A plain English interpretation would seem to make the NSA slurping illegal, but a legal interpretation could be completely different.

I think an important point here is that at the time the Bill of Rights was written, the language you quoted would protect you from having your private information copied. Because without photographs, video, or digital information, you had to actually physically "search" or "seize" a document in order to make a copy of it. There would be no way of copying a document without first getting access to it which, unless the government had a specific warrant, would have been prohibited by the 4th amendment.

Therein lies the problem. The government gets to approach the issue from "It's not explicitly in the Constitution, therefore we can do anything we want," when it is doubtful that the spirit of the document intended peoples digital communications to be handled differently than their physical communication.

IANAL, but here's my interpretation. There are two concerns here:

(1) 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 (2) 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.

(1) being the protection, and (2) mentioning the loophole of warrants and protections on that as well. Searching digital information without a warrant violates (1). The legal way to do it is via warrants, and limitations on warrants are prescribed in (2).

There is a level of interpretation required here. The 4th amendment wasn't written in an age where it was conceivable that information could be copied for free or intercepted without taking something from a carrier. What's important is the intent of the protections. NSA has decided to interpret these wordings in a way which lets them intercept and copy communications, and it's the job of the courts to interpret the constitution and tell them that they aren't allowed to do that.

This is not true at all. Copying papers and documents was very common and expected in that time, and it has been since the dawn of writing. The 4th amendment is clearly meant to protect against this:

"The right of the people to be secure in their [...] papers [...] against unreasonable searches and seizures, shall not be violated"

Why should the amendment protect papers if it is only the physical page that is protected and not the actual information?

It is more of a question of what is reasonable -- does a person know who has access to their information? Do they put their information out there with the understanding that it isn't private? The very basic idea here is that people should know what rights and privacies they have, and violating the conditions where they can reasonably expect privacy should be illegal.

My HTML Docs are my papers!

Surely even back in the technological dark ages of the 1700's it was possible for agents to make observations and report on "metadata"? After all, what about Paul Revere? So, I don't easily buy the flippant "times have changed" hand waiving.

Paul Revere's observation of events happening and reporting back in his own words isn't a great analogy. A better one would be to intercept all stagecoaches at their midway points across the entire United States, and manually copy verbatim the letters they carry in case one day we want to know what Jack said to Joe.

Yes, the passing of "information" is not new. But I believe the intercepting of mail, copying and then letting the original letter through to its destination without a warrant is illegal. (Isn't it?)

A much better analogy would be for the postmaster to be noting the sender and recipient of every letter that came through his station in a log that was then passed along to King George's agents in the colonies, allowing them to draw whatever inference they might like — while somehow also having a copy of every letter to hand for further perusal in the event any of the corresponding parties were deemed "suspicious."

I'm no scholar of Revolutionary era America, but I'm pretty sure that if shit of that sort were going down, it would have gotten specific mention in the Declaration.

I'm not sure precisely sure what shit you're talking about going down, but the Crown certainly brought a lot of shit down. Consequently the Constitution certainly respects a Freedom of Assembly. And yet at the same time they doesn't go so far as to forbid the government from tracking and monitoring assembly.

If you associate with someone that runs afoul of the law, why is it unreasonable to consider you? You seem to think the only possible outcome of actually examining your shit is incrimination. It cuts both ways, you know. You could be ruled out.

The same way making a copy of something is theft.

Interesting; when I make a copy of a song file I do not own, it's stealing. When the gov't makes a copy of my search records, it's not?

That's the hypocrisy I was getting at, yeah.

If the government opened your mail and made a copy while it was in the possession of the USPS would that count as seizure? search? What if they automated the process?

Both search (they looked at it) and seizure (they took/copied the information). And as I already said, whether it's manual or automated should be irrelevant, if the end result is the same (authorities taking that data without a warrant to fish for crimes - which is what the selectors and alerts do anyway).

Wouldn't you need to take something first before copying it?

If by "take" you mean deny or restrict access and use by the "owner" then, no, of course not. You don't need exclusive access to copy something (or record information about it).

For example, taking a picture of the Washington Monument isn't remotely anything that comes to mind when I consider what "seizing the Washington Monument" would entail.

Since the principles of photography post-dated the Constitution, I'd say it's a fair assumption that in its time the expectation was that exclusive access would be needed to (laboriously) copy something.

But it's kind of pedantic to argue over a single word.

The pertinent question is 'Do the views espoused by the Constitution as a whole (and subsequent case law) offer an opinion on the rightness of mass copying-without-exclusive access?'

Which is pretty thorny indeed. IANAL, but from what I've read it seems as though the Supreme Court is steadily trending more towards supporting an inherent right to privacy as a buttress against decisions that would otherwise feel wrong.

This is actually a great point. For all those folks who say violating copyright is not "stealing", I guess you could use the same argument that the gov't copying private records is not "seizing".

Not if I use a camera to take a picture of it, from which I can look at it to make a copy.

> seizure: the action of capturing someone or something using force

They first have to capture the data before copying. Fits the definition, in my opinion

You don't have to capture anything to make observations or replicas. It just has to be observable. Which gets back to "search". The nit I'm picking is what exactly the post finds special about "searches and seizures" vs "searches"

In this action, AT&T was compelled to fork their traffic to an NSA monitoring room. This was a step that added overhead that, I would think, exceeded mere observation.

It's not like they posted a man on a hill to watch the traffic go by (or a pair of blimps in MD...) They required AT&T's coöperation to proceed here. Like putting a checkpoint on the road.

I think I understand what you're saying, you're saying that a search automatically implies a "seizure" as well, right? Unfortunately, I don't think the US gov thinks the same way. Right now they are trying to make a clear distinction between "collecting" and "searching". I was just trying to point out that even if those terms were separated, the 4th amendment specifically refers to collecting (seizing) the data as well. So they can't get away with the mass collection just by saying collection != searching.

No, I'm saying that "seizure" means taking something away from someone. Duplicating something doesn't take anything away from anyone.

You could get into the old argument about IP theft about say copying vs stealing a movie. But even then, creating the concept of IP monopoly was explicitly granted by the Constitution, it doesn't arise from the 4th Amendment. If copying something is a "seizure" then why does the copyright clause even exist?

My interpretation of "search and seizure" is the situation that: you keep and possess private stuff that you secure at a location that you control, the government shows up at your place, takes all of your stuff back to their warehouse to look through at their leisure. The government has your papers and you no longer do.

That seems fundamentally and qualitatively different from what's happening when you choose to use someone else's telecommunications equipment. Now, instead of hanging on to your private secrets, you've decided to go ahead and scroll them onto postcards and toss them into the mail (for safe keeping? really?). And then after sending them out into the World, you're shocked that your secrets somehow got out of your bag! It defies common sense.

Edit: I guess what I'm saying is, if you write something on a postcard and drop it in the mail, that behavior clearly indicates that you do not consider the information you put on the postcard to be private.

Your argument is completely disingenuous - same as the people who are nitpicking and torturing the language in the constitution in order to get what they want.

When people are using the internet, in some contexts there is a certain expectation of privacy, and in others, there is none. If I upload pictures to a public Facebook profile or a hosting website (such as imgur), I certainly don't expect that to be private. It's there and available for everyone to see/observe/collect/record/download/analyze/whatever. However, if I connect to a search provider using HTTPS, and the search provider vehemently claims they do not hand my data over to the government, I certainly don't expect the said provider to hand my data over to the government, or the government to try to subvert and crack the encryption between me and the website.

I think it's high time people stop trying to get what's unfair and immoral by trying to subvert the language. While you may eventually get what you want, it is corrupt and evil. No amount of legal "reinterpreting" changes that.

It seems you make a rather large and unsubstantiated assumption that they are breaking encryption before obtaining authority to search the private content. The whole point of encryption is to remove trust from the communication channel. Encryption that fundamentally relies on messages being ephemeral is a fraud/farce/snake oil.

I understand the individual words in your post but have no idea what you're actually trying to say. Have you thought about running for congress?

How can you observe data without loading it into memory first?

How can you make a phone call or send an email without stuffing it into someone else's memory?