Tuesday, November 21, 2006

Third-Party Server Records? Think Hard...

Grim references a podcast which is troubling:

Two paraphrases:

'Because the Internet is entirely made of private property, things like the First and Fourth Amendments do not necessarily apply.

''Since we are now keeping so much of our data -- calendars, emails, etc. -- on third-party servers, we are essentially erasing the Fourth Amendment."

The trick here, I think, is that American courts used to recognize that new technologies deserved the same protections as the old technologies. When we started having telephones, the ability to wire-tap those phones became covered under the Fourth Amendment. The courts of the day simply held that the principle was the same.

Now, as the fellow points out, the courts have decided to side with power instead of protection. That same interpretation was available to them, but the courts have instead chosen to rule that the applicable rules were the a different set of rulings concerning third-party custody of your records. That is not to say the court's reasoning is wrong. What it is to say is that we need to amend the Constitution to make clear that new technologies must be incorporated into the Fourth going forward. "Your person and papers" should mean your ideas and records, whether they're stored on your hard drive or in your desk, or on a server across town. They're still yours, and the government should be required to prove a lawful interest in them -- as for example by obtaining a warrant -- before helping itself.

Although my business records are utterly boring, I'd hate to think that (if they were stored on a 3rd-party's machine) that they were subject to search without a warrant.

Your mileage may vary, but this is a fair warning.

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