If that wasn't bad enough, last night I saw two articles talking about a case being argued today in Philidelphia. The first was at Cato-at-liberty.org and was pretty short. The headline says it all:
The Government Can Monitor Your Location All Day Every Day Without Implicating Your Fourth Amendment Rights
The second was an opinion piece by Catherine Crump at the Philadelphia Enquirer. It began with,
"If you own a cell phone, you should care about the outcome of a case scheduled to be argued in federal appeals court in Philadelphia tomorrow. It could well decide whether the government can use your cell phone to track you - even if it hasn't shown probable cause to believe it will turn up evidence of a crime."
The Obama administration is asserting that U.S. citizens have no reasonable expectation of privacy when it comes to their cell phones. This premise comes from the "third party doctrine." The third party doctrine is controversial to say the least, and in the modern age the equivalent of completely removing all Fourth Amendment protections without the pesky need to actually repeal it.
The third party doctrine says that once you knowingly give information to a third party you lose the right to the Fourth Amendment protections. Just to help keep things clear, the Fourth Amendment says:
Fourth Amendment – Protection from unreasonable search and seizure.
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.
The third party doctrine is based on the premise that, since the phone company, your ISP, and any other company you may give data to is not within the four walls of your home or on your person, that data is no longer protected by the Fourth Amendments clause against unreasonable searches and seizures.
Forget whether or not you are doing anything illegal. Under the third party doctrine the government can subpoena your browsing history from your ISP without having to prove probable cause. Anything you put on Facebook (not that Facebook is private), and possibly even anything you backup to Carbonite or other online backup service. I say possibly to the backup services because they are usually encrypted, so a "reasonable expectation of privacy" can be argued. The same can't be said for email, cell phones, text messages or almost anything sent over the internet.
I don't know about you, but almost everything I do that doesn't involve direct, face to face communication goes through a third party before reaching it's destination. There is almost nothing I do that the government can't look into for no other reason than curiosity using the third party doctrine. Knowing the history of the American colonies and the revolution, I know the founding fathers never intended the government to have that kind of power.
I get so tired of ignorant people who attempt to dismiss the assaults on our Fourth Amendment by saying, "If you're not doing anything wrong, you've got nothing to worry about," that I'm not going to repeat that wornout BS here.
ReplyDeleteOoops.
It's really very simple, and it's the core premise behind the fourth amendment: If the government doesn't have evidence I'm doing something wrong, it has no business in my business.
ReplyDeleteWhile you are worrying about the government's tracking you 24/7, you are not paying attention to any other party tracking you. Got an angry ex? How about that guy you cut off in the traffic lane three blocks back? Wifey suspicious about your late night business meetings? Drunken husband looking for his absent late night punching bag? If there is no reasonable expectation of privacy, like your trash cans in the alley, who doesn't have access? Don't worry about it. I'm pretty sure the truckload of guys parked outside your house when you left this morning aren't the least bit interested in knowing your whereabouts.
ReplyDeleteA large percentage of the web is public with most content and services being free. Posting info on the web equates to standing in a public park and holding up a large banner or sign with words that anyone passing by can read. Just a thought, perhaps if more of the web did cost money, this would result in services rendered and products being purchased -- The things that imply OWNERSHIP. Just as purchasing a home means you have a place to close the door behind you and do what you want in PRIVACY.
ReplyDelete3 - I do pay attention. I haven't talked much about it yet in this iteration of my blog, but I have talked about various things people do to make it easy for stalkers and the dangers of careless web activity. There are steps you can take to protect yourself from ex-wives and stalkers. They may not always be effective, but they exist. When it is the government stalking you, you have no recourse. That is why I seem more concerned about the government.
ReplyDeleteWhen it comes to government surveillance, I do get more vocal because the government shouldn't mess with you without reason. Nobody should, but few people can screw up your life as badly as the government can without actually maiming or killing you.
4 - I agree that putting something up on the web automatically makes it a permanent part of the landscape, and that once it's on the web, it's out of your control. But this isn't just about the web. The government, in this case the Obama administration, is trying to say it has a right to call up your cell phone company, say, "I need jg's list of calls and locations for the last year" and have it handed over, no questions. Not because your suspected of being a terrorist, drug dealer, or other criminal, but because they want to, and the information was knowingly handed over to a third party (the cell phone company) by you - and since it was handed over to a third party, there are no Fourth Amendment protections.
ReplyDeleteI don't know what you do for a living, but my living would not be possible without using the internet and would be much more difficult without my cell phone. I cannot create my own cell phone company and ISP, set up towers and a world wide network, none of which ever hands off data to a third party. So to live my life and make my living I have to give Uncle Sam the right to snoop on me any time he wants without having to show due cause. That is wrong.
This can be a double edged sword, as we already know. I'll just say out loud what I think is the underlying problem: Who do we trust to do the correct thing? A statement that is paraphrased often is "I'm from the guvment and I'm here to hep you".
ReplyDeleteIF, the powers that be could always be trusted to do right we would have no issue with the ability to keep up with all the Jones and Smiths and where they go and when they go there. IF becomes a very large word in this premise.
So, with that being said, we have to be vigilant with our rights, maybe overprotective to the point of letting the bad guys roam free in many cases. The problem is in separating the criminals from the rest of the public.
Uh oh, here comes that profiling word again.
I have nothing to hide in my day to day life and I really don't care who knows where I go. The fear rises up in me when I think of how easy it is to be accused of some wrongdoing. For instance: Internet searches often turn up some kind of porn site. Stay there a little too long and you are soliciting same. It doesn't matter if you are interested or not.
All of this technology is nice, I love it. At the same time it scares the h--- out of me.
7 - That is truly the crux of the matter. And that is part of why I write this blog. Not just because we can't trust a government run by human beings to always do the right thing, but because there are organizations and individuals looking for us to give them an opening to do the wrong thing.
ReplyDeleteAnd more security isn't always the answer. Often it's properly using the security you already have.