Thread

Federal judge calls Flock 'indiscriminate mass surveillance'

483 points · 267 comments · sbulaev

joshheitzman · 1791066694 · focus · HN ↗
Yes, that's what they are. But does that mean are they breaking federal law or unconstitutional? I believe we've been told by the courts repeatedly that we should have no expectation of privacy out in public.
1. rglover · 1791068242 · focus · HN ↗
  > But does that mean are they breaking federal law or unconstitutional?
  I'd argue they break the fourth amendment:
  > 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.
  What are "unreasonable searches" if not being under "indiscriminate mass surveillance?"
  1. joshheitzman · 1791069256 · focus · HN ↗
    The US constitution is silent on surveillance. I seriously doubt anyone from the 1700s would consider watching people in public spaces to be a search. Automating watching people doesn't seem like it transforms watching into to a search either.
    Brybry · 1791071404 · focus · HN ↗
    People in the 1700s would not expect all of their movements to be tracked and watched at all times. They would definitely take issue with this. The issue of their time was general warrants/writs of assistance which let the British search anyone anywhere at any time and take their property. [1]
    The key issue there was the scope of the British power, not the fact that searches and seizures could happen at all. We wanted warrants that were reasonable and limited.
    The issue is not a single security camera from a private bank. The issue is not a single cop in a car investigating someone. The issue is a national and searchable network of cameras where agents of the government can track anyone at any time for no reason at all.
    The judge says the police need probable cause and a warrant for a search against an individual.
    > Freedom from persistent, dragnet-style surveillance while in public is not a foreign concept in our society, and it is a reasonable expectation that society already accepts. This is the same expectation of privacy that the Supreme Court has continued to recognize in cases like Carpenter and Chatrie. Cell phones also move in public places where people can see you in plain view. But it becomes constitutionally problematic when law enforcement can indiscriminately and passively catalog your whereabouts over an extended period of time and then use that information for any purpose whenever convenient. [2]
    [1] <a href="https://constitution.congress.gov/browse/essay/amdt4-2/ALDE_00013706/" rel="nofollow">https://constitution.congress.gov/browse/essay/amdt4-2/ALDE_...
    [2] <a href="https://storage.courtlistener.com/recap/gov.uscourts.oknd.76981/gov.uscourts.oknd.76981.62.0.pdf#page=35" rel="nofollow">https://storage.courtlistener.com/recap/gov.uscourts.oknd.76...
    jojobas · 1791093087 · focus · HN ↗
    Any particular individual's movements could be tracked in the 1700s, and people have been tailed since forever. Your movements are in public space, no warrant was ever needed for that.
    Brybry · 1791101200 · focus · HN ↗
    The stress on individual was to denote that you can't, for example, get a warrant to search every American's home. It has to be limited in scope.
    The judge was saying that the police needed probable cause and a warrant to search the Flock system because it's dragnet surveillance, similar to needing a warrant to access cell phone location data. [1]
    Just because you don't have an expectation of privacy while moving in a public space doesn't mean you don't have an expectation of privacy for all of your movements ever in every public space. That scenario wasn't possible in the 1700s.
    For an individual today, it's fine for the government to tail someone without a warrant. [2] It's probably not fine for the government to put a long-term GPS tracker on your car without a warrant (probably because the issue was sidestepped with trespass). [3]
    Even Alito notes that in the past it would have required too much labor for the government to surveil every movement of an individual for a long period of time and so society has the expectation that the government is not doing that. [4]
    [1] <a href="https://en.wikipedia.org/wiki/Chatrie_v._United_States" rel="nofollow">https://en.wikipedia.org/wiki/Chatrie_v._United_States
    [2] <a href="https://en.wikipedia.org/wiki/United_States_v._Knotts" rel="nofollow">https://en.wikipedia.org/wiki/United_States_v._Knotts
    [3] <a href="https://en.wikipedia.org/wiki/United_States_v._Jones_(2012)" rel="nofollow">https://en.wikipedia.org/wiki/United_States_v._Jones_(2012)
    [4] <a href="https://www.law.cornell.edu/supct/pdf/10-1259.pdf#page=33" rel="nofollow">https://www.law.cornell.edu/supct/pdf/10-1259.pdf#page=33
    jojobas · 1791101951 · focus · HN ↗
    I don't think any of this case law is relevant, trackers and requesting info that already exists are different from collecting publicly visible data.
    The expectation that the government doesn't tail everyone might have been reasonable, the expectation that the government doesn't tail you without a court-approved excuse is not.
    I'm not arguing there shouldn't be protection against total surveillance, I'm arguing the US constitution doesn't offer such protection.
    Brybry · 1791136564 · focus · HN ↗
    > the expectation that the government doesn't tail you without a court-approved excuse is not
    Yes but there is an expectation that the government doesn't tail you at all times for your entire life with no warrant, right? Largely because in the past it was infeasible for the government to do so: it cost too much money and required too much manpower.
    That's what Alito was arguing in Jones: people expect to be tailed sometimes but they don't expect to be tailed at all times for a whole month. And commentary suggests the Court would have had a similar opinion if they had not sidestepped the issue by leaning on trespass.
    As Alito said, the question the Court has not decided (and didn't need to decide in that case) is where the line is drawn. When does tracking a vehicle become a search and enter 4th amendment territory and require a warrant? (He said surely before 4 weeks.)

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