> On Fri, 31 Mar 2000, Black Unicorn wrote: > > > Actually, this isn't a 4th amendment issue. The data in question > (web site > > documents) are being voluntarily conveyed to the public (that's the > > point). How can you assert that there is an expectation of privacy in > > that context? This is, BTW, why "pen registers" which capture the > > numbers dialed from a given individual's phone do not require a warrant > > to install. Because that information (the phone number) is being > > voluntarily conveyed to a third party, to wit: the telephone company. Mr. Choate replied: > Yes, it is. The reason is pretty simple. Whether a piece of data is public > or private is really irrelevant in this case. Not according to the supreme court. <Criminal Justice 101> First you have to determine if a "search" (in the legal sense) has even occurred. The analysis here is: "Did the defendant have a 'legitimate expectation of privacy' in the place or thing searched?" If not, they was not search for the purposes of the 4th amendment and hence no warrant is required. (Katz v. U.S., 1967.) There are two questions to establish if legitimate expectation of privacy is present: 1. Did the person subjectively (actually) expect some degree of privacy? 2. Is the person's expectation objectively reasonable, that is, one that society is willing to recognize? If there was indeed a legitimate expectation of privacy (i.e. both questions are answered "yes") then we have to ask if the search was "reasonable." </Criminal Justice 101> Arguing that a person expects privacy in a webpage they use to solicit business from the public is just the height of silliness. Now, even if we were to argue (by some insane interpretation of natural law or something) that archiving web pages and spam email for the purposes of a later criminal investigation is a search, and assuming that we find it "unreasonable" so what? The fourth amendment is only enforced by the exclusionary rule. You can't stop the searching, you can only toss out the evidence at trial if it was obtained unconstitutionally. You know, I'm trying to keep a good attitude about this but you just have no idea what you are talking about. Take below for example: > As has been pointed out > there is no mention of the word 'private' or 'privacy' in the > Constitution. The point is that data is being searched for criminal > intent. No, the point is that the 4th amendment doesn't cover those things in which individuals do not have an expectation of privacy because examining said is not a "search." Case law on this point is endless- coming down to the level where the justices debate whether and when a person has an expectation of privacy in e.g. his curbside garbage or the heat emanating from his home. > The person being searched has not been aprised of the search and > given the chance to contact a lawyer to protect their rights. The person has placed the data being "searched" in the public domain. There are no rights to have it protected from "Search." See, e.g.: "When petitioner voluntarily conveyed numerical information to the phone company and "exposed" that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information to the police." (Smith v. Maryland, 1979) and "First, it is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does in fact record it for various legitimate business purposes." (Id.) When has there ever existed an absolute right to be "apprised of the search" since Katz? (Telephone taps with a warrant are now routine, for example). > The 4th > Amendment says ones papers and possession are secure from search. No, it says that they are secure from _unreasonable searches and seizures_. > It > doesn't say "unless they're published in a public forum". 40 years of jurisprudence disagrees with you. > In order to > specificaly collect data on an individual Your use of "collect" here implies an invasiveness that just isn't present when viewing an web page voluntarily published on the internet. Is Time going to sue the NSA now for archiving their magazines on the grounds that this is a search with the intent to expose criminal activity? > (even if done en masse) with the > specific intent of initiating a criminal case is unconstitutional. Totally false. Can you imagine the result this would have? Searching for articles about an individual in newsprint in the course of an investigation would require a warrant? Reading the name on a mailbox would require a warrant? Reading obituaries during a murder investigation would require a warrant? I confess to a murder in a classified and this is unreadable without a warrant? Please. > There > is no probable cause for the government to act on. Since this isn't a 4th amendment issue, so what? > It violates the 1st as > well because it acts as a priori restraint on speech (economic and > investment related in particular). Huh? How is this prior restraint? > Saying it's ok to search an individual > without due process You're mixing your legal terms now. > is ok because you're doing it to everyone is simple > bullshit. It's not a search unless there is an expectation of privacy. Period. Just go pick up a real book on criminal justice instead of watching re-runs of "Chips" please.
