The idea that location and possession does not matter is romanticized. The idea that your gmail drafts are private even though they are easily visible in plain text to Google is perhaps not romantic, but at the very least technologically confused. By that reasoning, your Facebook profile is "private." More to the point, the 4th amendment is not a blanket protection on "anything that you think is private." It's a protection against police invading the sanctity of your home and physical person. "Privacy" as some people think of it today, the idea that information might be considered private despite its being shared with numerous people, was not a developed concept at the time the 4th amendment was written.
I personally think the easier battle is to protect access to strong encryption tools, but I wonder, do you think it would be incoherent for a 28th amendment to try to spell out some legal protection for personal thoughts that were stored remotely?
Saying it a different way, if javajosh were to concede that your definition of privacy is more useful and concede that you are making a clearer case for how such things developed historically, how does he gain some legal breathing room for his remotely stored documents?
It wouldn't be incoherent at all for a 28th amendment to address various strands of privacy concerns that have arisen over the years. But there needs to be some thought into the design of such an amendment, because it wouldn't be an easy set of analogies from existing protections.
We are having a normative discussion, not an informative one. We can differ on what should be the case; this is not a discussion about what is the case. Clearly the courts side with you on this matter - the physical location of the data is given preeminence in legal debate over privacy.
And my normative claim is that this position is totally, completely, batshit insane.
We're having an informative one, because you said:
> The data in my drafts folder is exactly the same as data in a paper journal that I have in my house, and is protected by exactly the same law, the 4th amendment.
The use of "is protected" versus "should be protected" seems to me to be inviting an informative discussion, not a normative one.
As an aside, I'm always surprised by how often people on HN talk about "should" versus "is." That's very weird for the engineer in me. You can never make progress in a normative discussion, at best you can boil the disagreement down to a disagreement in principle and leave it at that. E.g. I don't trust the government less than I do Google, Facebook, etc. If I'm willing to write something in my gmail, where a Googler can see it, I'm okay with the government seeing it. You almost certainly have a different perception of privacy and trust. A normative discussion on the subject is thus futile--who is "right" about what who and how much to trust private companies versus the government?
> I'm always surprised by how often people on HN talk about "should" versus "is."
Perhaps we make this distinction because it's an important one. It always surprises me when an engineer confuses the two. "But the courts say that the gov't can access your data if it's not on your property," is NOT a counter argument to the statement "The 4th amendment should extend to data." The conversation cannot move forward unless both sides understand the difference between "should" and "is".
