DoJ's Gag Order on Reason Has Been Lifted

Re:DoJ's Gag Order on Reason Has Been Lifted by lisper on Monday June 22, 2015 @01:17PM (#9759728)

Because it was acquired without probable cause or a warrant.

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Re:DoJ's Gag Order on Reason Has Been Lifted by slapshot on Monday June 22, 2015 @01:24PM (#9759788)

But under the (still hotly contested in the Digital Age) "third party doctrine", information held by a service provider (an ISP, a website, a hotel, a cell phone company, etc) law enforcement can request data with just a subpoena. A court may issue the subpoena if the law enforcement agency shows that the information is "relevant to an investigation" and the recipient must comply or show why the data isn't available. There doesn't have to be probable cause. Anything found can be part of the investigation -- there's no parallel construction required. [1]

Today (literally, today), the Supreme Court took a first shot at narrowing the third party doctrine with respect to hotel room records in Los Angeles. [2] The ruling was largely about the procedure a hotel may use to quash (ask a court to reject) the subpoena, but it shows a willingness to cut back on the third party doctrine. The GPS tracker case also had some commentary suggesting a limit to the third party doctrine, but it was ultimately decided based on the physical intrusion of the device.

[1] Alternet's very negative take on the issue: http://www.alternet.org/8-ways-police-can-spy-you-without-wa...

[2] http://www.politico.com/story/2015/06/hotel-guest-list-priva...

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Re:DoJ's Gag Order on Reason Has Been Lifted by _delirium on Monday June 22, 2015 @01:34PM (#9759858)

The third-party doctrine "proper" is about third parties voluntarily giving information to the government, which the government would otherwise have needed a warrant to get. For example, the government could effectively conduct dragnet surveillance of cell-phone records without a warrant if a mobile-phone company chooses to enter into a commercial data-selling agreement with the government: for $x/record, we'll send you all the call data. This has historically been held to just be a voluntary transaction between parties, so doesn't implicate the 4th amendment.

The hotel case you mentioned doesn't seem to involve that; in this case, the hotel is opposing the request, so there's an adversarial posture between the third-party data holder and the government over handing over the data.

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Re:DoJ's Gag Order on Reason Has Been Lifted by schoen on Monday June 22, 2015 @07:07PM (#9761737)

It's true that in Smith v. Maryland "[t]he police did not get a warrant or court order before having the pen register installed", so the original case was a voluntary disclosure in that sense. But installing pen registers isn't voluntary at all these days:

https://en.wikipedia.org/wiki/Pen_register#Pen_Register_Act

So it's reasonable to speak of the third party doctrine being applied to compelled data disclosures, not just voluntary ones.

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Re:DoJ's Gag Order on Reason Has Been Lifted by mapt on Monday June 22, 2015 @03:45PM (#9760717)

http://www.wired.com/2012/08/administrative-subpoenas/

http://arstechnica.com/tech-policy/2015/03/feds-subpoena-red...

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Re:DoJ's Gag Order on Reason Has Been Lifted by rayiner on Monday June 22, 2015 @01:35PM (#9759869)

Probable cause and a warrant is required when there is a 4th amendment right. The anonymous poster does not have a 4th amendment right over information about his posts in the hands of a third party (in this case, Reason). Reason, of course, does have a 4th amendment right over that information. But a warrant with probable cause is not required for a grand jury subpoena, because the recipient has the opportunity to challenge the contents: http://jolt.law.harvard.edu/articles/pdf/v24/24HarvJLTech543...

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