Yes, the correct debate is about how the 4th amendment is written and interpreted. That said, there is a tactical reason why opponents of surveillance take the somewhat disingenuous approach of banging on the 4th amendment while raising issues that are not relevant to analysis under the 4th amendment. That tactical reason is that if you can make a government policy out to be a Constitutional violation, you need only convince the courts the policy is wrong, instead of convincing the public and the Congress. It's a lot easier.
> I guess a right to conduct day to day affairs without 3rd and 4th party institutional intervention is harder to reason about.
What I find puzzling about this sentence is that we conduct our day to day affairs in a way where 3rd parties are almost always involved, whether you're talking about AT&T, Google, etc. Most people who oppose surveillance want to set up a system where it's okay for AT&T, Google, etc, to be able to track you using metadata, but not okay for the government to do the same.
That proposal might very well be a good idea, but there's simply no way to express that distinction in Constitutional terms. "Private" in the Constitution doesn't mean information is just between you, who you're talking to, and your hundred closest friends working at Google or Facebook.
If people want the interpretation of the 4th amendment to change, it will be a lot easier if these services were actually private: i.e. encrypted content and obfuscated signaling so that third party service providers like AT&T and Google can't use the information for commercial purposes. Then you can make the "expectation of privacy" argument with a straight face.
Trying to explain intervention there, say I have an agreement with AT&T that they maintain records of my calls strictly for billing and then dispose of them, then doing something else with the records is intervening (in the sense that undisclosed attention is somehow being directed at records of my calls). It was not a good way to say it.
That's precisely what I'm getting at. If you had such agreements with AT&T, Google, etc, that they'd only use your call/e-mail records for routing and billing and dispose of them immediately, you'd have a far stronger argument that you have an expectation of privacy in that information.
> I guess a right to conduct day to day affairs without 3rd and 4th party institutional intervention is harder to reason about.
What I find puzzling about this sentence is that we conduct our day to day affairs in a way where 3rd parties are almost always involved, whether you're talking about AT&T, Google, etc. Most people who oppose surveillance want to set up a system where it's okay for AT&T, Google, etc, to be able to track you using metadata, but not okay for the government to do the same.
That proposal might very well be a good idea, but there's simply no way to express that distinction in Constitutional terms. "Private" in the Constitution doesn't mean information is just between you, who you're talking to, and your hundred closest friends working at Google or Facebook.
If people want the interpretation of the 4th amendment to change, it will be a lot easier if these services were actually private: i.e. encrypted content and obfuscated signaling so that third party service providers like AT&T and Google can't use the information for commercial purposes. Then you can make the "expectation of privacy" argument with a straight face.