Computers, Privacy & the Constitution
-- YuwenHuang - 04 Mar 2013

Recently, Google revealed the transparency report which shows information about requests from government s or courts around the world to hand over user data. Users may wonder why Google can hand over mytheir information to governments or courts. Take look at Google’s privacy policy which describes their authorization from youusers to hand over your date to the third party. I guess users may argue that I never agree with that privacy policy. In fact, bBefore you sign up for a Google service, such as Gmail, you need to check the box that I agree to the Google terms of service and privacy policy; otherwise you will not be allowed to use Google service. I bet over 99% users signed up and checked the box without reading these agreements and I believe some may just check the box even without understanding what the box is for. Practically, as long as you sign up to use Google service, you are seen to authorize Google the power enumerated in the agreement.

According to Google’s privacy policy, Google will share personal information with companies, organizations or individuals outside of Google if they have a good-faith belief that access, use, preservation or disclosure of the information is reasonably necessary to:

  1. ) meet any applicable law, regulation, legal process or enforceable governmental request.
  2. ) enforce applicable Terms of Service, including investigation of potential violations.
detect, prevent, or otherwise address fraud, security or technical issues.
  1. ) protect against harm to the rights, property or safety of Google, our users or the public as required or permitted by law.

If Google thinks it’s necessary to share your information to the government for the above reasons, they can share it without your consent. Users may argue that Google is wrong about the existence of any above conditions and request Google to be liable for their loss. However, it’s not easy to inculpate Google, because they can claim they have good faith.

I don't understand this analysis. Google's privacy policy is irrelevant to whether it has to respond to court orders. Of course the policy reminds people that this is true, but if there were no privacy policy, Google's responsibility to respond positively to court orders would be precisely the same.
Thank you for comment. I didn't analyze wall. I should say that [In other words, even if it's not a court order to ask for users' information, Google can still share information to a government agency without user's consent under the privacy rule. Although users may request Google to prove they correctly applied the rule to reveal their data, it's easy for Google to prove necessity, because the rule is broad and indefinite].

Of course, user may contend that it’s invalid to make users agree to give up their privacy without notifying or emphasizing the effect of agreeing upon on Google’s privacy policy in advance, therefore your agreement is invalid.

What do you mean "of course the user may contend"? What follows is nonsense.
In Taiwan, users may argue it's invalid to sneak a privacy waiver provision into a standard form contract without notifying users by obvious warn in advance, but I don't know the rule in USA and it may not work in the same way.

However, even though it’s void to force users to sign up the above agreement, the law authorizeswhat Google do to hand over user’s information to the government is still legal. The Electronic Communications Privacy Act (“ECPA”) which was passed in 1986 confers power to law enforcement to access many kinds of stored communications without a warrant. That is to say, no matter you agree or notThus, all the information you put on the Google service would be possible under government‘s surveillance on day.

Does this mean "Sometimes a warrant is required, and sometimes it isn't, but either way there is a form of government request Google will have to obey?"

"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" is stipulated in the Fourth Amendment to the United States Constitution. According to the fourth amendment, can wewe can't argue that the ECPA is violatingviolates the request of Constitution?,

because the legislative has decided the government's action under ECPA is reasonable and necessary.

No. Certainly not. The power of the legislature to set "reasonable" conditions for search and seizure is undoubted. No legislative provision has ever been held to violate the Fourth Amendment.

It depends on whether the act enforced by the government is search or not.


In Supreme Court’s decision in Katz v. United States, the majority ruledwe are told that the Fourth Amendment protects persons and not places from unreasonable intrusion.

No, that's not a ruling, that's rhetoric.

Even if the defendant used the telephone booth in the public, he did not want his conversation to be heard by third party. The Fourth Amendment of the Constitution protects persons and not areas from unreasonable searches and seizures and the government's activities in electronically listening to and recording defendant's words spoken into telephone receiver in public telephone booth violated the privacy upon which defendant justifiably relied while using the telephone booth and thus constituted a ‘search and seizure. This eavesdropping without a warrant would lead to evidence exclusion in court. It seems that Supreme Court has expand the Fourth Amendment protection to “Person” not only place to adapt to the technology age.

No, you're mistaking the language in which the Court describes what is doing for what it is doing. It held that the conversation could be seized from outside the phone booth, so that a search could have occurred even though there was no intrusion into the booth. That this didn't consist of removing the concern with place from the Fourth Amendment analysis is shown by the fact that the Court went on to announce that Katz had an expectation of privacy in the "enclosed phone booth," making it appear possible that if the phone booth had been open rather than enclosed, or one phone on a wall bank, that the wiretapping would have been okay. You should further have reflected that none of this was constitutionally required. Congress went on to modify the expectation of privacy and therefore the constitutional result by passing Title III, which set up different and not entirely consistent rules for the surveillance of phone conversations.

However, don’t miss the point that the Court also stressed that “(w)hat a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection. Therefore, in Miller v. United States, the court held that no legitimate “expectation of privacy” could be found in the contents that the depositor voluntarily conveyed to the banks. In addition, the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to government authorities; even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. Furthermore, in Smith v Maryland, the Court held that it is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company recording this information for various legitimate business purposes. And even if users did harbor some subjective expectation of privacy, this expectation was not one that society is prepared to recognize as “reasonable.” Because when users “exposed” that information to company’s equipment in the normal course of business, he assumed the risk that the company would reveal the information to the police. In terms of the prospective of the above cases, we can inferconclude that the Fourth Amendment protects only one kind of person who harbors expectation of privacy which is recognized as “reasonable” by the Supreme Court. In accordance with the Court’s logic, users who convey information to Google through their service may not have expectation of privacy since they put their content on Google’s server voluntarily and they know or should know that Google maintain or store their information on their(third party) server, thus assume the risk that Google would reveal to the government these date even if users assumes Google would keep these date secretly.

You've worked your way around to a more or less correct statement of law via several intermediate doubtful positions.
In sum, I think I can say that ECPA is not violating the Fourth Amendment since no search involved.
After understanding Supreme Court's opinion regarding revealing private information to third party, it is not surprising that ECPA was passed to support the governmental overall surveillance over people. Apparently, users cannot argue ECPA is unconstitutional for allowing the government to access private information without a warrant, because there is no Fourth Amendment violation problem here.

No, you can say that ECPA doesn't violate the Fourth Amendment.

It is disappointed that users have no legal grounds to fight against Google's privacy rules.
I also worry that I think I can predict that the Fourth Amendment construed by the Supreme court is no longer a harbor to prevent from unreasonable search because there is no need to search, we ourselves as internet service users have relinquish our privacy and hand over to Google, Facebook or whatever. So, just don't use it.

You need at least an informal linguistic editor to help you with the remaining flaws in your English.

The language problems are slight. The primary problem to address in revision is that the essay proceeds at present on a basic legal error. No "inferring" is necessary to say that everything stored in third-party hands by service providers is subject to release in response to court orders. No private contractual arrangement or privacy policy could ever change that. So the supposed constitutional analysis currently engaged in is pointless.

The essay needs a new primary subject. Everything we store in "cloud" services, from Gmail to Facebook, as well as all the data about what we access, which has nothing to do with what we store, is available to both government and private litigating parties, by subpoena or other court order, on a showing of relevance or need, for which the evidence level necessary runs from mere assertion to probable cause. So what?



Webs Webs

r4 - 14 Jan 2015 - 22:44:39 - IanSullivan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM