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I think you're mistaken about the "spirit" of the 4th amendment. First, the spirit of the Constitution must be read consistently with that of English common law, which means that pretty much any information is accessible with a warrant or subpoena pursuant to court order. To the extent that the NSA is collecting information pursuant to court orders (e.g. CDR's) that's a very relevant point. The "spirit" of the law is that courts can authorize getting at pretty much any information.

Second, you're wrong about the "spirit" of the 4th amendment being about the government not searching through your stuff. It's about not violating the sanctity of your home or person to do so. That's a very key distinction. Even in 1802, the government could, pursuant to a court order or even just consent, search through "your stuff" that you had left for safekeeping at a friend's house.




I have no issue with information being accessible under the right legal framework. Court orders, warrants, sure, go nuts. But the whole idea behind that framework is "you have to actually have a valid reason for getting this data", as opposed to "you can look at whatever you want and make up your mind about why you want it after the fact".

I think where this is sticking for me is the whole "consent" issue. I have a very difficult time believing that all the accused companies have voluntarily consented - without coercion - to NSA taps. If that's the case, then welp, all bets are off. I don't think that's the case, though - if it has happened, it is almost certainly under some sort of coercion, at which point it's very difficult to argue that this data is being given with free consent, and we're back to it effectively being seized via "consent" given under duress (which any court would strike down as not being consent at all!)

Regarding the language itself, the 4th says you have the right to be secure in your papers (personal data!) and effects (personal property) against search and seizure, not just the sanctity of your home and person. I would like to know how that is reconciled with modern legal interpretations - that seems like a big gaping hole to be filled.

Maybe I'm just naive and want to believe that things are better than they are. Maybe Google et al have just rolled over and happily handed over data. I really have a hard time believing that's the case. In either case, though, we have allegations of our government conducting wide-scale spying on its own citizens, by means of the seizure of those citizens' supposedly-private communications. Given a country that is supposed to uphold the values of liberty and individual freedom, that is extraordinarily distressing.


> I think where this is sticking for me is the whole "consent" issue. I have a very difficult time believing that all the accused companies have voluntarily consented - without coercion - to NSA taps.

Duress is not coextensive with coercion. Consent can be valid even if it involves leverage (e.g. no government contracts for you unless you consent).

> Regarding the language itself, the 4th says you have the right to be secure in your papers (personal data!) and effects (personal property) against search and seizure, not just the sanctity of your home and person.

4th amendment interpretation does make the logical analog between "papers" and "files" or "data." But information that you've given over to others (e.g. files stored in your Drop Box) or information that was not even generated by you (e.g. server logs, call data records) is not your "personal data" whether it's ink on papyrus or bits.

What's tripping you up is the illusion of "network transparency." You might think of your gdrive as the same as your hard drive, but of course it's not. The difference between the two is nothing less than keeping information about your finances in your desk (where the 4th amendment protects it), and keeping that information in your accountant's office (where the 4th amendment does not protect it).




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