Here you go:

"Amendment IV: 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."

But, nothing is being searched or seized here; it seems like people gave up their personal data, ignored or didn't read a ToS, and companies are selling it - not being forced to give it up. I don't like it, but does it mean it's illegal?

The government purchasing this data is tantamount to a search. There's quite a bit of precedent on this, much of which was needed after telephones became ubiquitous. Just because the electrical signals carrying a private conversation pass through wires that are owned by a third party does not make the conversation public. Similarly, just because internet traffic is observable by anyone with a network tap does not mean that the government can passively collect this data "just in case". Purchasing the data from a third party does not magically absolve the government of its Constitutional duty to first obtain a warrant for the data.

> Just because the electrical signals carrying a private conversation pass through wires that are owned by a third party does not make the conversation public

Without data protection laws that data isn't your private data, that data is the company's data. And you are free to do whatever you want with your data, and since the company owns this data the company can sell it to the government, it doesn't matter if you consider it to be your private data the company still owns it. Europe has GDPR which clarifies this, the data is yours even if it is stored on company servers, I'm not aware of USA having anything similar except for health data.

So to me it sounds like you'd want USA to create something akin to GDPR.

We have laws, though. The Fourth Amendment is a law, and it's reasonable to say that purchasing what is (arguably) the company's data is still tantamount to a search of our "effects".

Or maybe it's not, and we need new legislation specifically targeting this. That's where the Supreme Court comes in: their raison d'être is to resolve ambiguities in existing law.

> The Fourth Amendment is a law, and it's reasonable to say that purchasing what is (arguably) the company's data is still tantamount to a search of our "effects".

Got any precedents for this? All examples given in this thread was about the government forcing companies to hand over data, not companies just plain selling it to the government. These companies are already selling this data to other companies, like credit score companies gets a lot of data from banks, so to them selling it to the government as well is just another buyer. Does the fourth amendment really apply to cases like this? My hunch is that it does not, and you wont find any such cases since it is so clear that it doesn't apply that it hasn't even reached a court.

I don't. My point is just that the Supreme Court can set a precedent, so it's possible that if the case were brought to them they might decide that it's covered under the Fourth Amendment (or something similar) without needing additional legislation.

I think this could win with a supreme court with judges who have a looser interpretation of the constitution, which right now is not the supreme court we have. The majority of the justices right now have a stricter interpretation and would not see government buying data as "search and seizure."

The better solution would be to have laws legislated. However, unfortunately, there is so much gridlock because congress members are just chasing after Ws for their respective parties and minimizing Ls.

I don't see any reasonable way they could find a way to expand the Fourth Amendment to cover this without it also covering things like the government using information given to them by informants and witnesses without a warrant.

You misunderstand the fourth.

1. The data is not yours. It’s the company’s 2. The government is not “search or seizing” the data, they are purchasing it or a license to it. 3. The company is selling it voluntarily, the government is not compelling it.

The fourth does not apply.

Nobody reads ToS. Doesn't mean people should give up their personal data.

Maybe it should be illegal?

> Maybe it should be illegal?

Then Congress has to pass a law to make it illegal.

Data held by 3rd parties falls under "papers and effects".

Not really. It’s the service’s papers and effects, which happen to contain information about you.

There’s obviously something very wrong here, but it’s a dead end to say no one can sell the government info about people. Need a different approach in the vein of outlawing crazy TOSs, keeping user ownership of their data even if used to make a service operate, right to be forgotten, etc.

As far as I know, a warrant is required to tap a landline phone. I don't see how the principle behind that (reasonable) interpretation of the 4th amendment would not also apply to any kind of data (or metadata) from Internet traffic. Just because some 3rd party collected what is, by legal precedent, clearly considered personal effects and papers does not mean that 3rd party can grant absolution to the government in its need for a warrant to obtain that same data.

Telephones actually have a specific exemption to what’s called Third Party Doctrine: the government’s right to acquire information sans warrant when that information is lawfully held by a third party.

Telcos are exempt for exactly the reason you mention: phones are really important to daily life and they collect tons of sensitive data as a side effect of normal use.

IMO this is one of the more viable routes to getting this behavior changed: expand Third Party Doctrine exemptions to a lot more services, but to do that we’d have to confront just how much data we’re choosing to share, and whether we’re actually choosing to share it.

According to what law or precedent?

The USA definitely needs to pass a 'GDPR on steroids' law here to get the bored government agencies off our backs.

Amendment IV doesn't actually expressly include a warrant requirement for anything.

It requires searches and seizures to be reasonable.

It also creates requirements for the basis of any warrants that are issued.

It is a series of Supreme Court rulings that infers a general warrant requirement with some exceptions from that text.

The biggest weasel word of all time: "reasonable".

The fourth amendment doesn't address the case where people voluntarily provide information to a third party which contracts with the government to pass it on. It's indicative of the attitude we should have in the matter, but it's not basis enough for a legitimate Supreme Court opinion — not that that will prevent one being given, mind you. There really does need to be a law preventing government from contracting with private companies to provide confidential information without a warrant.

How is this not different from asking a phone company for the transcript of a private conversation? Or of asking a bank for account statements? It is the nature of any sufficiently complex economy that private entities will possess extremely intimate knowledge about their customers, knowledge which their customers "voluntarily" provided in the course of business. None of this has any bearing whatsoever on the constraints applied by the 4th amendment, unless we are trying to move toward the interpretation that literally any interaction with the outside world is subject to unlimited surveillance by the state.

The difference is none of those things are freely available for purchase?

That’s the key here - these companies are already selling this information. The govt is just saying “cool, we’ll buy it too”.

This comment above does a good job of explaining how phone calls are different: https://news.ycombinator.com/item?id=29170649

The ruling shouldn't be on the Fourth Amendment but on unenforceable blanket ToS's. It would require a law or another amendment though. Any information collection that is not affirmatively allowed by your actively posting it yourself, or that you allow on each individual instance should be illegal.

The amendment doesn't say "secure from government" or "secure from law enforcement." It just says "secure."

A person cannot sell themselves into slavery. Yet we allow the US government to endorse indentured servitude for immigrant labor, because corporations want indentured servitude.

Nor can a US citizen sign away workplace safety rights, legally. Yet we allow US construction companies to rampantly hire off-the-books undocumented labor so that they can freely ignore workplace safety rights, since no one will exist to make claims against them.

It would have been perfectly reasonable for a court to broadly ban surveillance of individuals by telecom companies back in the 1990s, based on the same principles that those courts have willfully violated on behalf of corporations in the other examples above.

I think you're making the opposite argument from what you hope to. You start off suggesting that the fourth amendment might apply here, but then point out that in every analogous case you can think of, the court has declined to stand up for people wronged by government acting through corporations. What makes you think they would do differently here? More to the point, why do you want the judicial branch to exercise legislative power in this, or any, case?

Let me clarify: I'm not suggesting that precedent and consistency demand one way or the other, I'm saying precedent and consistency only matter until it's a corporation with lots of political donations brought to bear, in which case precedent and consistency cease to matter.

Therefore, arguing precedent and consistency is relatively pointless. My point was an exercise in "anything goes, so make the law fit the argument." That's what Chevron would do.

In other words: What's the desired outcome? That corporations cannot wantonly create mass surveillance any more than the government can. So make the law fit the desired reality: extend the 4th amendment to say that privacy is a basic human right and people cannot contractually sign it away any more than they can contractually sign away themselves into forced labor. A clever judge could outlaw H1 visas in the same ruling and get 2 birds with 1 stone.

I'm sorry to nitpick, but a judge can't outlaw anything. Judges don't make laws. They interpret them, and I can't imagine a court willing to opine with any sort of honesty that the fourth amendment provides the sort of protection you're suggesting. I'm as angry about it as anyone, but I recognize that neither my opinion nor my anger is law, a sentiment which I hope for the courts to share.

It doesn't bind private persons, but it can certainly be argued that by the government making a purchase, the collection (even if retroactive) is pursuant to government direction through the incentive or interest nexus, and therefore the collection itself should be unconstitutional as soon as the government makes one purchase.

This falls under the 4th amendment. Certainly under the purview of the Supreme Court.

I'm not going to pretend to know what the ruling would/should be according to the 4th amendment, though.

> Do you really want five unelected, unaccountable lawyers deciding this matter?

No but that's what happens when Congress is so split right now.

The judiciary doesn't just rule on the constitutionality of laws (actions by the legislature) but also actions by the executive, for example vaccine mandates.

Sure, but the CIA has existed since 1947- if it were illegal for them to gather information on citizens from companies who willingly give it up (for free or for sale), it would've already been decided and would apply to today's data.