This only holds water actually if you accept a program run on someone's computer is not 'theirs'.
I.e. it going into an encryption routine as part of the software package does not constitute me accepting the service provider's access to meta information about the transaction or to the contents of the original stream.
That's like saying putting something in a Post Office envelope/box is to accept that the post office can open and inspect it will. Which is patently ridiculous.
The legal system needs to come to terms with the fact that the usage of a program to transfer or transform information to the ends of achieving communication is in and of itself A) an act of speech, and B) qualifies as letters, papers, etc on light of the 4th Amendment. Further, the Court needs to do a better job at holding companies to account for informing when their tools are built in such a way that Third Party Doctrine applies. Furthermore, the implementation of that communication that Third Party Doctrine applies of should not be tolerated if it turns into some traditional template document that everyone tucks into something no one is going to read if we really care about civil rights at all.
It's worthy of ridicule the way we've let legal doublespeak undermine our fundamental civil rights.
The trouble is that there's already a significant amount of precedent here holding that the Constitution doesn't treat this kind of information passing through intermediaries the same as letters through the mail. Congress had to pass the Stored Communications Act to provide any sort of halfway-reasonable protections for email stored on third-party servers, for example. And it can be pretty un-reasonable itself.
Encryption changes things substantially, at least for practical purposes, but the whole idea of EARN IT is to coerce services to disincentivize the kind of encryption that would matter.
The Court has made some baby steps in the direction of fixing the more "core" deficiencies of the 4th Amendment's protections given the realities of the modern world, but they're not showing any signs of rushing to go further.
I.e. it going into an encryption routine as part of the software package does not constitute me accepting the service provider's access to meta information about the transaction or to the contents of the original stream.
That's like saying putting something in a Post Office envelope/box is to accept that the post office can open and inspect it will. Which is patently ridiculous.
The legal system needs to come to terms with the fact that the usage of a program to transfer or transform information to the ends of achieving communication is in and of itself A) an act of speech, and B) qualifies as letters, papers, etc on light of the 4th Amendment. Further, the Court needs to do a better job at holding companies to account for informing when their tools are built in such a way that Third Party Doctrine applies. Furthermore, the implementation of that communication that Third Party Doctrine applies of should not be tolerated if it turns into some traditional template document that everyone tucks into something no one is going to read if we really care about civil rights at all.
It's worthy of ridicule the way we've let legal doublespeak undermine our fundamental civil rights.