I don't get it... The Fourth Amendment Text reads:
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.
And effects. They're washing this term of all its meaning.
That's like arguing that cops can search your apartment if it's being rented.
Effects in this sense is a synonym for movable goods, that is, physical property. The text of the fourth amendment protects your property. This and other rulings are saying that the records your phone company produces of what calls they've connected are not yours, but the phone company's property. If Verizon gives its own property to someone, government or otherwise, you have no standing to claim any violation of your rights.
A web analogy: the records of who called whom (i.e. "phone metadata") are just like web server access logs. You would like the court to say that the web server access logs you produce are the property of all the individual people that visit your website. The judge is saying those logs, produced and held by your server, are your property alone.
I still don't get it. There's equivocation with the verb to produce.
I'm going to play Socratic Advocate here. When a music producer produces a record of an artist, who owns it? How do we conceptualize this relationship of artist to market? Do we argue for record companies or for artists? What motivates the moral structure of this debate? Are we sympathizing with record companies or artists? It's a record of the artist's musical activity.
Now, a phone company is a producer of our records. We're its content producers. But if the record company re-uses its artist's work without that artist's permission...?
If I tell you I murdered someone, should the government have to get a warrant to get that information from you? What if they asked you if I visited your bookstore last week? What if you kept a journal indicating each time I visited your store, or bought a book? What if they asked Amazon for a list of when I visited their site, or bought a book? (Keep in mind Amazon has the right to refuse to give that information without a court order...the question is whether I can protest that subpoena, or only Amazon can).
At some point, there needs to be a line drawn. The 4th amendment has been interpreted to protect "reasonable expectations of privacy" in order to draw that line. If I tell you I murdered someone, or if you tell the police when I visited your store, that's over that side of the line. I have no reasonable expectation of privacy. I freely gave up this information to a third party.
The copyright law has an entirely different history, text, and history of interpretation.
I agree that the third party doctrine is no longer workable in the digital age (people probably have just as much of an expectation of privacy in their DropBox as their C: drive), but I don't think the other viewpoint is entirely unreasonable, especially during the pre-digital age.
I think this ruling, and others it foreshadows, points to a need to amend the Constitution to ensure protections for personal property held by third parties on behalf of private citizens. At the time the 4th amendment was created, it was reasonable to assume that anything a person wanted to keep private would be safely secured by them in their own home. Times have changed. Now I keep my private financial "papers" in a system administered by a third party bank, my private medical "papers" in a system administered by a third party insurance company, and a lot of my other private effects in databases administered by third parties google, dropbox, etc.
Luckily the Framers foresaw that future changes would necessitate changes to our fundamental law so there is a process for the People to make such issues much less open to broad interpretation by the judicial branch.
In legal philosophy there is the notion of "proximate cause" — this needs to be re-purposed for "effects" such that we define the notion of "proximate effects" w/r/t to content producers.
If a music artist has some legal clout regarding that which is produced, and can seek renumeration through certain provisions, we as content producers of phone companies (and obviously ISPs, because clearly that's the next phase in this legal narrative) should have provisions which scope and define joint ownership of our recorded activities insofar as a "chain of events" is scoped around our assigned IP addresses and telephone numbers.
A schema can follow http://schema.org/Person. Block any transaction between third-parties and government that involves these properties. Metadata becomes what is left over — raw information about what is essential to describe the service itself.
We are content producers just like music artists are content producers. Phone companies are just like record labels.
Well, yeah. But what are we going to do about it since it's clear past due to update such laws. Now we're in the thick of an infrastructure that has just busted any practical sense of minimal right to self-governance.
That's true. But both sides of the political spectrum regularly do these sorts of linguistic end-runs around the Constitution in the name of the ends justifying the mean. The right does it to the fourth amendment, the left does it to the second. So neither side can legitimately call out the other for hypocrisy because nearly everyone is willing to jettison at least part of the Constitution when the stakes get high enough.
There's a different argument here. Some buildings keep a visitor log. That will say when I arrived, perhaps who I'm visiting, and likely when I left. I do not own that data, and it is not part of my papers.
Nor is this information part of the papers of the person I'm visiting. It's part of the business records of the building owner.
There's no promise that this information is private. Indeed, in some buildings it's often semi-public information, in that successive visitors can likely see the log when signing in or out, and it's left on the main desk all day.
The argument is that this information isn't under 4th amendment protection because it not not part of your private or personal information.
The recent court opinion by Judge Leon against the NSA points out - rightly, in my opinion - that when there is a lot of information about who you communicate with, then that in turn reveals information about you and your thoughts. You should read the opinion.
Such an Decision actually wholly deprives us of all self-governance what-so-ever since technically we do not own the fax machines and systems of all the companies we interact with.
This is totally disingenuous. It penalizes us for not only being born here but also for aligning ourselves with the American Dream.
Corporations are not people. Corporations do not have effects — we, the People, do. What kind of justice is this?
That's like arguing that cops can search your apartment if it's being rented.