Computers, Privacy & the Constitution

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AvaGuoFirstPaper 5 - 12 May 2013 - Main.EbenMoglen
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How the Fourth Amendment Could Be Revived
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 In a world in which personal best efforts to protect private information is insufficient because we have to interact with others who do not do the same, it is up to the courts to revive the Fourth Amendment to protect what are and should be reasonable expectations in the new technological world.
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This is meaningless not-analysis. In response to my criticism of the last draft, you simply decided to ignore what I said and re-establish your argument on the same basis using different words. The Fourth Amendment, you say again, should be understood to reflect not "the artificial reason of the law," but whatever dumb shit uninformed people think about "privacy." That isn't how the constitutional law of search and seizure worked before, and it isn't how it's going to work now. The "reasonable expectation of privacy" bootstrap works against popular ideas of privacy, by giving judges the power to hold that the dumb shit people actually believe, by not being reasonable, isn't law. Which is what, in case after case, they do.

Here you tried again to make subjective popular belief the sole basis on which you are going to treat bits stored in a third-party location to which the operator has constant unlimited access differently than physical "papers and effects" stored on the same terms. This isn't legal analysis, this is ignoring applicable law. The question you need to answer is the question you ducked in this draft: what is the legal reason to treat bits differently than not-bits given the existing law of search and seizure with respect to third-party control?

 Word count: 985

Revision 5r5 - 12 May 2013 - 14:47:28 - EbenMoglen
Revision 4r4 - 25 Apr 2013 - 21:48:39 - AvaGuo
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