Links for Friday, June 21
Links for Friday, June 21
A little of what we're not told, a little of what we don't see. Plus plants and music
The theme of today’s piece might be: what we’re told not to notice, what we don’t see, and who doesn’t say things to us. Plus plants and music.
Links
• Is the 4th Amendment Dead in Cyberspace? (Tracy Mitrano at Inside Higher Ed)
Over a year ago former director of both the NSA and CIA, Michael Hayden, flat out admitted, "we kill people based on metadata." He quickly distinguished between the metadata about which the debate was focused, telephone records, and other forms of surveillance metadata upon which covert actions are taken. Not surprised about the actions, I confess I was taken aback when I considered the implications that this disclosure has on Fourth Amendment jurisprudence in cyberspace.
Ever since the USA-Patriot Act in 2001, I have been harping on complications of the Fourth Amendment between content and metadata in data networking. For as many years I have hoped for a revision of the Electronic Communications Privacy Act (ECPA) to correct the discordance. In all that time, I have assumed that a restructuring of Fourth Amendment jurisprudence around these distinctions might be possible.
I no longer believe that is a reasonable fix. The advanced algorithms applied to metadata in government surveillance make metadata the equivalent of content. That is what struck me about Hayden’s remarks. Not just occasional leaks of subject lines or an Internet Protocol address that resolves to a web page found in routing records, but the sorting, combining and redefining of that data into identifiable predictive behaviors that function as the basis of military or law enforcement actions. It is in this sense that I declare the Fourth Amendment dead in cyberspace. The only way to resurrect the Fourth Amendment could be to place all data, both content and metadata, under Fourth Amendment rubric.
For those who have not been keeping up with the debate, here is the background. …
I’ve been concerned about the loss of the Fourth Amendment for almost ever. I wrote this in 2015:
All constitutions and all systems of laws are amended in two ways, by formal agreement (legal process) and by informal agreement. In England, the second ways is in fact the primary way their "constitution" is amended.
In the U.S., if both parties enforce a law in the same way, even though that way deviates from the way the law is written, the law is amended until forced back to its original form in practice. Thus:▪ We have, by bipartisan agreement, revoked the Fourth Amendment. Neither party enforces it, so it's gone. Do you think you'll see it enforced in your lifetime? It's possible. Is that likely, do you think, without another radical change?
The Fourth Amendment is gone. It was lost in 1928. So, to the question above, will we see it enforced again — in today’s security-fed state, the answer is no.
File under “Saying goodbye without mourning the loss.”