If The Feds Say Collecting Data Is Not A Search Until It Looks At Them, Is It Not Piracy Until You View The File?

from the just-saying... dept

Mon, Jul 22nd 2013 9:01am — Mike Masnick

One of the (many) governmental excuses that have been spread in an attempt to defend the NSA surveillance practice of collecting every bit of data is that just the collection isn't a "search and seizure." That is, they claim that until they actually look at the data they've collected, they haven't even triggered a 4th Amendment issue. Of course, most people find that sort of redefinition difficult to believe from just a common sense standpoint. However, security guru Tom Ritter jokingly spun this around on Twitter recently:

Hey, so according to the government, I can download movies, and it isn't piracy until I watch them, right?

Okay, so I can already hear the copyright maximalist wonks banging away at their keyboards to mention that the exclusive rights provided under copyright law include reproduction and distribution, so merely making a copy via a download could violate those two rights. And, of course, that's how the courts have seen it. But, the point he's making is actually quite reasonable. Yes, according to common sense and the basic definitions in English we all know, when the NSA hoovered up all the data about all of your communications, most normal people would think it's a search. But, now that the feds are admitting that normal English doesn't apply, and that they can hold all your data without violating any law, it seems only fair to flip that around on them. So, even if basic English says that downloading a copy likely involves potentially infringing on the reproduction right, if we just use the NSA's dictionary, clearly, copyright holders should need to also prove that the file itself was opened. Otherwise, it's as if nothing at all happened...

Just to reinforce this for the angry maximalists (assuming they read this far): this post is not actually about copyright law -- it's about the NSA's defense of surveillance. Also, learn what sarcasm means. Don't bother spewing something stupid now.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: collecting, copyright, infringement, nsa, nsa surveillance, search, tom ritter

63 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Rikuo (profile), 22 Jul 2013 @ 3:09am

Cue obvious troll (cough AJ cough) in 3, 2, 1...
[ link to this | view in thread ]
GMacGuffin (profile), 22 Jul 2013 @ 8:57am

I'll spew something stupid anyway...
You keep using the term "hoover" as a verb, which is 1) distinctly British terminology (I know, because I'm from California and I own the Monty Python box set); and 2) a flagrant use of Hoover's trademark generically in a public forum, risking Hoover's exclusive rights. Don't you care about Hoover's trademarks?

Bloody hell...
[ link to this | view in thread ]
Anonymous Anonymous Coward, 22 Jul 2013 @ 9:08am

Re: I'll spew something stupid anyway...
I don't think President Hoover would seek publicity rights over this, his estate however...

Oh, you mean the Electrolux type of Hoovering. Got to get out of this vacuum.
[ link to this | view in thread ]
Anonymous Coward, 22 Jul 2013 @ 9:10am

Heisenberg Piracy Principle

You can't confirm someone is a pirate until you look at his playlist.

Man, this quantum stuff is confusing as hell.
[ link to this | view in thread ]
That Anonymous Coward (profile), 22 Jul 2013 @ 9:13am

"Don't bother spewing something stupid now."

*stares* Are you new here?!
That is their default mode of operation.
[ link to this | view in thread ]
Anonymous Coward, 22 Jul 2013 @ 9:13am

Don't bother spewing something stupid now
There is an infinite supply of stupid, the cost of duplication and distribution of stupid is effectively zero.
I thought you guys understood the economics of the digital age, stupidity is ubiquitous and needless to say, the USA is at the forefront of the stupid economy.
Do you have any ideas how many jobs in the states are supported by the stupid.
[ link to this | view in thread ]
Anonymous Coward, 22 Jul 2013 @ 9:15am

Re: I'll spew something stupid anyway...
Have you forgotten about John Edgar Hoover.
[ link to this | view in thread ]
Anonymous Coward, 22 Jul 2013 @ 9:18am

"That is, they claim that until they actually look at the data they've collected, they haven't even triggered a 4th Amendment issue."

Why collect it if you aren't going to look at it. It has no value if you're just collecting it...

I mean if something is captured while a person isn't a suspect, it can't just be stored to use to further incriminate them at a later date when that person becomes a suspect right?

In other words, unless it's being illegally searched the data has no value and as such wouldn't exist. I think the NSA has lost the ability to use the "give us the benefit of the doubt" or "we're working in your best interest" arguements. It's time for people to stop trying to justify the actions and realize that this isn't right by any measure or secret interpretation of the law...
[ link to this | view in thread ]
Lord Binky, 22 Jul 2013 @ 9:19am

They seized it.. but they don't search it until they feel like it.
[ link to this | view in thread ]
Tman, 22 Jul 2013 @ 9:20am

Re: I'll spew something stupid anyway...
Wouldn't the Brit version by "Dysoning"?
[ link to this | view in thread ]
Vidiot (profile), 22 Jul 2013 @ 9:21am

Re: Re: I'll spew something stupid anyway...
That sucks.
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

out_of_the_blue, 22 Jul 2013 @ 9:24am

Right, nobody can top YOU in your forte, Masnick.
"Don't bother spewing something stupid now."

But as usual, it's not even your idea! You're just copying.
[ link to this | view in thread ]
McCrea (profile), 22 Jul 2013 @ 9:27am

Theft
And it's not theft until you spend the money.
[ link to this | view in thread ]
Stephen Hutcheson, 22 Jul 2013 @ 9:27am

In quantum mechanics, there are no vacuums. But I thought Frank Dyson worked in relativity theory, not quantum mechanics.
[ link to this | view in thread ]
Stephen Hutcheson, 22 Jul 2013 @ 9:29am

In quantum mechanics, there are no vacuums. But I thought Frank Dyson worked in relativity theory, not quantum mechanics.
[ link to this | view in thread ]
martyburns (profile), 22 Jul 2013 @ 9:33am

Re: Re: I'll spew something stupid anyway...
Your average Brit can't afford a Dyson..
[ link to this | view in thread ]
Transmitte (profile), 22 Jul 2013 @ 9:44am

My take on them collecting all of this is to serve a s a data base on each person in the event they commit a crime, and then they can comb through everything as a bible on your communications to try and suss out what kind of person you are, if you had been planning something all along and how hard they throw the book at you. If you actually wind up committing a crime that is, and what worries me is what if you do something completely benign, but some asshole of a prosecutor decides he wants to go full tilt on you, say because you were attending something like an occupy rally yet all you did was get arrested cause you were there in a peaceful way.

Yeah, spin hard that and twist those words...
[ link to this | view in thread ]
PRMan, 22 Jul 2013 @ 9:47am

Re:
It's a good thing that "seizure" isn't mentioned in the 4th Amendment...
[ link to this | view in thread ]
sorrykb (profile), 22 Jul 2013 @ 9:58am

Re: Re:
Since the amendment refers to "unreasonable searches AND seizures", the NSA would probably just use some Boolean argument.
[ link to this | view in thread ]
Anonymous Coward, 22 Jul 2013 @ 10:00am

Re: Re: Re: I'll spew something stupid anyway...
And blows...
[ link to this | view in thread ]
Anonymous Coward, 22 Jul 2013 @ 10:00am

Re: Right, nobody can top YOU in your forte, Masnick.
Hook, line, sinker....
[ link to this | view in thread ]
Anonymous Coward, 22 Jul 2013 @ 10:03am

Re:
There is a vacuum in quantum mechanics, but it is not considered a vacuum by the classic definition. In other words it is not completely empty.
[ link to this | view in thread ]
That One Guy (profile), 22 Jul 2013 @ 10:14am

Re: Re: Re:
'While our actions may at times 'look' like 'unreasonable searches', or sometimes 'look' like 'unreasonable seizures', since they rarely fall under both categories at once, our actions don't violate the 4th amendment.'

Something like that you mean?
[ link to this | view in thread ]
Anonymous Coward, 22 Jul 2013 @ 10:21am

"...are admitting that normal English doesn't apply"
That reminds me, I need to review Politics and the English Language...it's been so long since I last read through that.
[ link to this | view in thread ]
ChurchHatesTucker (profile), 22 Jul 2013 @ 10:24am

Re: Right, nobody can top YOU in your forte, Masnick.
Came here for this. Was not disappointed.
[ link to this | view in thread ]
Anonymous Coward, 22 Jul 2013 @ 10:28am

Re: Re: Re: Re: I'll spew something stupid anyway...
Nope, it's not a Henry/Hettie Hoover. Hettie's far better for blowing, by the way...
[ link to this | view in thread ]
Anonymous Coward, 22 Jul 2013 @ 10:30am

Re:
I counterpropose with Schroedinger's Playlist:

If you put a playlist into iTunes, it is either infringing or non-infringing, but the listener will not be aware of which until the playlist is listened to.
[ link to this | view in thread ]
RyanNerd (profile), 22 Jul 2013 @ 11:08am

What I thought this was about the NSA... Not quantum physics
Wait...I get it. By using quantum physics analogies the truly stupid will not be able to form any argument. It must be working since I notice the surprising lack of trolls so far. Or perhaps I just haven�t read any of their comments so they don�t exist until I read their comments then. Wonderful wonderful world of quantum mechanics!!!
[ link to this | view in thread ]
Lurker Keith, 22 Jul 2013 @ 11:08am

word swap
The NSA keeps admitting to collecting the data, but I don't think that means what they [have to] think it means.

I think the problem is that the NSA has no idea that you can substitute "seizure" w/ "collection" in the 4th Amendment & not lose any meaning what-so-ever.
[ link to this | view in thread ]
Anonymous Coward, 22 Jul 2013 @ 11:23am

Shoe on the other NSA foot?
So, following NSA logic, If Eric Snowden had collected a huge pile of classified information but not handed any of it over to the Guardian, it wouldn't technically be a leak, and therefore not prosecutable?
[ link to this | view in thread ]
Lord Binky, 22 Jul 2013 @ 11:24am

Re: Re: Re: Re:
More specifically the justification would be 'Our actions can be an unreasonable search or an unreasonable seizure, but we avoid doing both at the same time such that the 4th amendment is not violated. '

example :
Collecting as much data on american citizens as physically possible may be unreasonable seizure of their information, but we only search it when we have a reasonable search.

or

Searching everything a person owns at the national boarders including the contents of any electronics they have with them may be unreasonable, during that unreasonable search we try to find a reasonable cause for seizing it so we do not violate the 4th amendment.
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 22 Jul 2013 @ 11:31am

Re:
I notice it's always you or Ninja that are the first commenters. You two losers really have nothing better to do all day than lick pirate cheerleader Mike Masnick's slothy bunghole, do you?
[ link to this | view in thread ]
Bergman (profile), 22 Jul 2013 @ 11:35am

So I wonder...
If it's not a search and seizure until the files are viewed, would stealing government secrets not be espionage until they are disseminated?
[ link to this | view in thread ]
SolkeshNaranek (profile), 22 Jul 2013 @ 11:40am

Schr�dinger's download...
[ link to this | view in thread ]
That One Guy (profile), 22 Jul 2013 @ 11:43am

Re: Re:
Well if you were willing to pay to support the site(not going to happen I know), you too could get the first word on articles in, though considering you seem to have the maturity of a 5-year old, I'd imagine it would just lead to a whole string of 'This comment has been hidden...' posts as first comments.
[ link to this | view in thread ]
Anonymous Coward, 22 Jul 2013 @ 11:47am

It's a seizure, not a search
The massive collection of data is not a "search" within the meaning of the 4th amendment until they look at it. The controversial part is that it is arguably a "seizure," within the meaning of the 4th amendment and should therefore still require a warrant (or at the very least some higher standard, like reasonable suspicion or probable cause), since the 4th amendment guards against both unreasonable searches and seizures. The analogy to copyright law is based on a fallacious premise, besides the fact that its a huge stretch, considering they are two very different areas of law (one governing state actors in the area of law enforcement and the other governing private actors in the area of the marketplace).

Further, not sure how arguing that you have an exclusive right to reproduce is in any way a maximalist position- it's the most basic and oldest right there is under copyright law (hence, copy-right)
[ link to this | view in thread ]
Anonymous Coward, 22 Jul 2013 @ 12:19pm

Re: It's a seizure, not a search
The maximalist position being described is to leap immediately to what your exclusive rights are rather than any kind of pragmatic evaluation of a situation. Sort of like saying 'how is that maximalist, those are your rights' and 'the analogy is based on a fallacious premise' in response to a sarcastic joke about something else.
[ link to this | view in thread ]
Anonymous Coward, 22 Jul 2013 @ 12:32pm

Re: Re: It's a seizure, not a search
1. The dictionary defines maximalist as "a person who favors a radical and immediate approach to the achievement of a set of goals or the completion of a program." Simply asserting your rights (rights that Congress specifically has authority to grant under the Constitution, unlike most rights), is not maximalist. Believing that there is nothing more important than those rights may be maximalist, but simply believing in them and asserting them is definitely not. Calling someone maximalist for simply asserting those rights is a form of ad hominem attack that continues to close the door to real reasoned discourse.

2. The sarcastic joke is based on the fallacious premise that "searches and seizures" is the same, when they are in fact two different things. It has nothing to do with copyright law; I'm just clearing up fourth amendment jurisprudence so that someone reading this post won't accidentally be mistaken by the "sarcastic joke." I feel that it's important to point out when there is a clear legal error for the benefit of the public, since I'm all for making information available to the public.
[ link to this | view in thread ]
RD, 22 Jul 2013 @ 12:38pm

Disgusted with it all
"Okay, so I can already hear the copyright maximalist wonks banging away at their keyboards to mention that the exclusive rights provided under copyright law include reproduction and distribution, so merely making a copy via a download could violate those two rights. And, of course, that's how the courts have seen it. But, the point he's making is actually quite reasonable. Yes, according to common sense and the basic definitions in English we all know, when the NSA hoovered up all the data about all of your communications, most normal people would think it's a search. But, now that the feds are admitting that normal English doesn't apply, and that they can hold all your data without violating any law, it seems only fair to flip that around on them. So, even if basic English says that downloading a copy likely involves potentially infringing on the reproduction right, if we just use the NSA's dictionary, clearly, copyright holders should need to also prove that the file itself was opened. Otherwise, it's as if nothing at all happened... "

It's disgusting to me that you have to include such a ridiculously intricate CYA/cover-all-arguments definition of the point you are trying to make, simply due to the overweening shills and trolls that post here who WILLFULLY and INTENTIONALLY go out of their way to miss the point and principle of any article posted here, just so they can "try to get" Mike and other frequent supporters of the site.

It's political bullshit just as bad as the garbage that goes on in our nations capitol, and it diminishes us all that is is even remotely necessary to have to do so because of people of poor character and less intelligence that insist on trying to derail every topical discussion here by trying to devolve it into "the law is the law why wont you debate me rawr bawk bawk!" infantile rhetoric.
[ link to this | view in thread ]
RD, 22 Jul 2013 @ 12:40pm

Re: Right, nobody can top YOU in your forte, Masnick.
"But as usual, it's not even your idea! You're just copying."

Ah, right. So according to you, EVERY NEWS OUTLET IN THE WORLD does nothing but "copy" the works of others, yes? Or would you like to revise your charge?
[ link to this | view in thread ]
Anonymous Coward, 22 Jul 2013 @ 1:02pm

Yes, I admit that I downloaded it
But, I wasn't going to actually watch it until the copyright expires!
[ link to this | view in thread ]
pixelpusher220 (profile), 22 Jul 2013 @ 1:35pm

Re:
Does anybody think they don't have automated crawlers going over the data looking for key words?
[ link to this | view in thread ]
Anonymous Coward, 22 Jul 2013 @ 1:42pm

Re: Yes, I admit that I downloaded it
Don't you mean you intended to leave it to your great great great grandchildren so that they can watch it when the copyright expire, and no official copies exist anymore.
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 22 Jul 2013 @ 2:08pm

Re: Re: Re:
Well if you were willing to pay to support the site

LOL

Google already pays for this site to spew moronic anti-copyright propaganda. You stooges are just too dumb to know you're lining the pockets of fat-cat corporatists.
[ link to this | view in thread ]
Anonymous Coward, 22 Jul 2013 @ 2:16pm

Re: Re: Re: Re:
Hilarious
[ link to this | view in thread ]
Anonymous, 22 Jul 2013 @ 2:53pm

Most of the time when I rent-n-rip, I don't even watch the movie that night. I can watch the copy I made anytime, and it might be quite some time before I get around to watching it.
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 22 Jul 2013 @ 4:13pm

Re: Re: Re: Re: Re:
And true.
[ link to this | view in thread ]
Anonymous Coward, 22 Jul 2013 @ 5:01pm

Re: Re: Re: Re: I'll spew something stupid anyway...
Combine the two and that's my whore of a wife.

"J/K Honey"
[ link to this | view in thread ]
Robert A. Rosenberg (profile), 22 Jul 2013 @ 5:50pm

Re: I'll spew something stupid anyway...
At the end of one of the alternate endings of the movie Clue, someone reveals themself as an FBI agent and says that the FBI will clean up the mess and will prevent it from becoming public. When this claim is questioned, he states "Why do you think the FBI is run by a man named Hover?".
[ link to this | view in thread ]
Zeissmann (profile), 22 Jul 2013 @ 6:33pm

English
Not being a native English speaker myself, I feel a bit silly reminding you that the phrase "is it not piracy until..." actually implies that it is piracy. Or was that your intention? I get confused...
[ link to this | view in thread ]
btrussell (profile), 22 Jul 2013 @ 7:10pm

"If The Feds Say Collecting Data Is Not A Search Until It Looks At Them, Is It Not Piracy Until You View The File?"

I just said the same thing recently, so, being a reasonable person, I agree.
https://www.techdirt.com/articles/20130703/00121023700/snowdens-constitution-vs-obamas-const itution.shtml#c916
[ link to this | view in thread ]
Anonymous Coward, 22 Jul 2013 @ 7:19pm

Re: Re:
Cool, so in future when DHS catch someone accausing him downloading pirated films, they can only charge him if they can prove he really had watched it?
[ link to this | view in thread ]
Disgusted, 22 Jul 2013 @ 8:33pm

A pile of crap, by any other name, still stinks.
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 23 Jul 2013 @ 2:30am

Re: Re: Re: Re: Re: Re:
Yup. Completely true.
[ link to this | view in thread ]
Bergman (profile), 23 Jul 2013 @ 8:26am

Re: Re: Right, nobody can top YOU in your forte, Masnick.
Technically everything you wrote in your post is a copy too...the original is between your ears, after all.
[ link to this | view in thread ]
Brent Ashley (profile), 23 Jul 2013 @ 9:15am

Re: Re: Re:
The point of Schrodinger's Cat is that quantum physics dictates that the cat under that set of circumstances must be considered simultaneously to exist in both states.

Thusly, (if the already tenuous analogy were to be stretched even further) until they listen to a file to determine if it is infringing, they can say that it both is and is not, a condition no doubt likely to bring a smile to a certain Mr. Clinton.

You can guarantee which side the copyright lobby would choose to decide is the determining state; it's not so clear which the courts would decide trumps the other in this hypothetical overextended analogy world.
[ link to this | view in thread ]
Anonymous, 23 Jul 2013 @ 7:07pm

Re: Re: Re: Re:
That whole cat thing could never happen in real life, and is there fore irrelevant.
[ link to this | view in thread ]
Anonymous, 23 Jul 2013 @ 7:08pm

Re: Re: Re: Re: Re:
*therefore
[ link to this | view in thread ]
Anonymous Coward, 26 Jul 2013 @ 6:46pm

If this is not a search, is it not at least a seizure?
[ link to this | view in thread ]
Alex, 27 Jul 2013 @ 2:33am

Thought
If I understand properly, this means two things:

- Without a warrant, any evidence provided in court from this type of source is void.
- If you can prove that your information was accessed with no warrant, that is illegal and can be punished.

In this context, I don't see why everybody is freaking out. Yes, it is possible to track you because you carry a super high tech phone with you. Yes, the government is plugged in, because it is a reliable source of information. But anything you say or do cannot be punished in the court of law; unless there is a valid reason to track you.

My personal fear is more about what the government considers a valid warrant. I'm especially afraid of their loose definition of "terrorism".
[ link to this | view in thread ]
Shawn, 27 Jul 2013 @ 4:23am

What...?
So your telling me they collect all this data but do not look at it, what if in the process they came across something truly incriminating like proof of terrorism, your telling me that they wouldn't look at that unless something came up with that person? no.. of course not all kinds of flags would be raised because I bet they scan every piece of information that comes in, therefore they look at all of it and are guilty.
[ link to this | view in thread ]
Cgull, 27 Jul 2013 @ 2:49pm

Re: I'll spew something stupid anyway...
I'm from the midwest and regularly use the phrase 'hoovering' when referring to when my cat devours crumbs off the floor because she apparently feels we're starving her when she's gaining weight.
[ link to this | view in thread ]
Anonymous Coward, 27 Jul 2013 @ 6:43pm

Re: Re: I'll spew something stupid anyway...
no, Dysoning would be Australian...
[ link to this | view in thread ]