Basically it says the 4th Amendment does not apply online, at all.
Incredibly, this was described as limiting CISPA, but it
accomplishes the exact opposite. This is very, very bad.
Far from the defense against malevolent foreign entities that the
bill was described as by its authors, it is now an explicit
attack on the freedoms of every American.
Can someone with legal expertise tell me if this is this hyperbole or reality?
Technically, federal laws are not supposed to define the constitution. But often use and custom helps define constitutional protections, and these laws themselves define use and custom.
Thus, for the present case, if the supreme court wants to look whether the fourth amendment applies online or for cloud services or the like, it will see what is happening in the real world and decide whether people really have an expectation of privacy in their data that is stored in the cloud.
If becomes an open and accepted practice for any online service to give up any information to the government just for the asking, and without a warrant or an explanation, then you can hardly expect the Supreme Court to declare that the fourth amendment applies to any data stored with any online provider.
So yes what we do now will definitely help define what the constitutional interpretation will be down the road. If we do not demand privacy, nobody is going to give it to us.
The 4th amendment encompasses: "The right of the people to be secure in their persons, houses, papers, and effects..."
The literal text applies to your house and your person. You can make certain analogies from there, but even paper mail is a bit of a stretch (it was found to be protected because the Constitution creates the postal service). For example, one analogy might be: if I go everyday to the local news stand, the 4th amendment doesn't prevent the government from asking the news guy what magazines I look at without a warrant. So why should the government need a warrant to ask Google what things I search for on their service? I'm not saying that its the right analogy, but rather that people who say "oh the 4th amendment obviously covers information online" are starting from the result they want and working backwards.
The problem is two-fold. First, there is no general right to privacy in the Constitution. Privacy is a pretty modern concept. People in the 1700's had very little privacy even in the physical sense.[1] What the 4th amendment protects is a narrower right: the sanctity of your home and personal effects and freedom from physical government harassment. Second, we don't have a well-defined idea of privacy even today. Why should the Constitution protect information I freely give my credit card company, Google, Facebook, etc, with the knowledge they use that information to sell me crap. Why should the Constitution protect information third parties collect about me from their own observations? There might be good reasons to institute those protections, but we don't have a well-defined idea right now where the lines should be drawn.
[1] There is an interesting documentary I saw once about how hallways are a pretty modern concept that arose contemporaneously with ideas of personal space. In houses from the 1600's you'd through bedrooms to get to other parts of the house--the expectation of private space was just a lot less.
Given your statement that privacy is a relatively modern concept, I find it interesting that the EU has comparatively stronger data protection laws.
Those countries in general are way older and have older laws than the US. So if they can have strong data protection and privacy why should the US not have an equivalent?
Giving up protection in the name of commercial interest is not a good solution or compromise.
Looking at the Apr17 version of HR 3523 on thomas.loc.gov (the amended version is not out yet), it seems that it says:
* The government is allowed to share "classified cyber threat intelligence" with private parties.
* Private parties are allowed to share data with the government, and the government is not allowed to "affirmatively" search it except for specific categories of crimes.
* These categories include warezing, which is probably upsetting a lot of people.
Does anyone know what an "affirmative" search is? Is this where it is assumed that the 4th Amendment's warrant requirement is being dropped?
I don't see anything in there about collecting data other than what is given to the government by private parties. Of course, "contractors" can be used to offset the blame. The government could pay telcos to tap their wires and forward everything to Langley, which is also a nice way of corruptly sending public funds to the already wealthy. However, I believe this could already be done without this law.
Does anyone know how the law compares to what existed before? If a network provider sniffed their own wires and came to the government with evidence of warezing, an imminent terrorist threat, kiddie porn, a script kiddie DOSing someone, or script kiddie porn, how would it have been handled before this law?
