Hacker News Reader

Comment by cpleppert | Hacker News Reader

>>This article is trash, the discussions on this issue are trash, and everyone is running around like a headless chicken.

This article is more than trash, it is totally misleading in almost every way. Any discussion of the fourth amendment in the context of Patriot Act 215 will invariably bring up a discussion of the third party doctrine which states that: "information loses Fourth Amendment protection when it is knowingly revealed to a third party[1]." The author seems to go out of his way to avoid discussion of any of the extensive legal precedents that have interpreted the fourth amendment. Just hyperbolic rhetoric and comparisons to the colonial government. It isn't helpful at all.

1:http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1138128

View on HN

We don't consider handing a letter to the post office as "knowingly reveal[ing] to a third party." Should using a phone company to carry your private conversation not have the same protection?

Yes we do. You reveal to the Post Office:

1. The date that you sent the letter

2. The address you're sending the letter to

3. The return address (ie: where you've sent the letter from).

Its a known fact that the Post Office records this information, and that the Police is free to analyze this information without a warrant. How do you think the Police go about those Anthrax attacks through the mail system?

Neither the Police nor the Post Office are allowed to OPEN an envelope, because that hasn't been revealed to a 3rd party. But that goes back to this whole _metadata_ collection question. There is no expectation of privacy on the three elements above... you've written it on the _outside_ of an envelope. So you expect other people to know about it.

If this is a "Police State", then we've been living in it for damn near a hundred years. Analysis of mail records is police standard procedure.

Similarly, the Smith v Maryland case argues that Telephone records have no expectation of privacy. After all, its all information that goes onto a caller-id, its all public information.

On the other hand... the actual conversation, the Feds aren't allowed to look at. That requires a warrant.

Collection and analysis of mail records after suspicion may be a long-standing practice, but universal collection before suspicion is something else entirely. Further, you say it's a "known fact," but how many people on the street actually know this? I mean, if it was really a known fact, then it wouldn't work because criminals would use some other way to communicate, right?

After all, its all information that goes onto a caller-id, its all public information.

A typical person will not expect the information shown on their caller ID screen to be public information. There's a really, really huge difference between information entrusted to a limited set of third parties to handle to the minimum extent necessary to carry out a service, and information made public. The government's reasoning and position on this needs to change.

Collection and analysis of mail records after suspicion may be a long-standing practice, but universal collection before suspicion is something else entirely.

Legally, it doesn't matter. Its warrantless. The Police don't need suspicion to analyze mail records! They don't prove anything to a judge, they just get what they want. The Post Office keeps track of your mail records anyway, so the Police can easily "retroactively" swim through that metadata whenever they please (again, without a warrant). No seriously, how do you think they got that Ricin letters guy so quickly?

There's a really, really huge difference between information entrusted to a limited set of third parties to handle to the minimum extent necessary to carry out a service, and information made public.

And thus, my anger why "Professor" Barnett isn't focusing on the relevant section of law. Section 215 of the Patriot Act, the (warrantless) collection of 3rd party "business records or any tangible things".

The law is _very_ clear where the NSA derives THESE powers from. Washington debate has been very clear to anyone who has paid attention. There is no need for "secret interpretations" of law, its clear as freaking day. This controversy should be focusing on the legal aspects of the controversy, you know... the parts that we can FIX instead of sitting around like dumbasses who can't figure out how to read.

I have an expectation for "legal experts" to tell this sort of information to the public. The solution is quite straightforward and simple. If you don't like what the NSA is doing, reform section 215 of the Patriot Act.

My anger is at "Professor" Barnett for not discussing anything relevant to this debate. As stated before, this debate is incomplete without discussing:

* Smith v Maryland (Warrantless collection of metadata is constitutional)

* 215 of the Patriot Act (Establishes legality of 3rd party collection of business records)

* 702 FISA Act (Leaked information was from FISA court, although the above two points are the important bits)

You want to know where the powers come from? Its there. Too bad you can't trust the "legal expert" in the newspapers to tell you this information :-(

Reply on news.ycombinator.com