From citizen property to data privacy, in-depth interpretation of the Fourth Amendment to the US Constitution

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Understand the origin and evolution of privacy rights in the United States from a legal perspective.

Extended reading: ” Code is Speech: From the “Great Libel” in the UK to the Cypherpunk Movement

Original Title: “Lawyers and Hackers | #4 Fourth Amendment: From Citizen Property to Data Privacy”
Written by: Gu Ziyi

Just like compass, gunpowder, and printing, the emergence of the Internet has not only completely changed the way human information is transmitted, but has also promoted changes in the organizational structure and ideology of the group from a deeper level and broader field. However, the Internet as we see it today does not happen overnight: from the birth of ARPANET for military purposes, to the emergence and popularization of the World Wide Web, to the landing of a large-scale industrial Internet, in addition to technical personnel, academic and commercial People from all walks of life such as, industry, politics, etc. have shown their talents, and jointly shaped today’s Internet. Among them, legislators and legal workers have also played a pivotal role in promoting and guiding the development of the Internet. For example, they advocate that code should be equivalent to speech because they are protected by constitutional amendments and require users to treat modified derivative works as equivalent. The release of authorisation rights to give back to the society, etc., have all demonstrated the innovation and wisdom of legal workers.

The famous Italian historian and philosopher Benedetto Croce once said that all true history is contemporary history. A systematic review of the development of Internet technology, as well as a series of legislative and judicial evolutions that occurred in the process, will help us understand the laws of cultural and social changes, summarize and refine the experiences and lessons, whether it is for us to respond to the present The challenges of the times and the resolution of the predicaments that may be faced in the future are of very important significance.

This article is a compilation of the intensive network courses of the Institute of Network Society, School of Intermedia Art, China Academy of Art. Fourth Amendment: From Citizen Property to Data Privacy.

In the last class we talked about the First Amendment , freedom of speech and “code is speech.” Today, I will mainly talk about an issue that everyone cares about: privacy. The origin of privacy in the United States is not the same as the origin of privacy in Europe. I will mainly talk about how the privacy rights in the United States come from. In the end, I will talk about the differences with European privacy. The origin of privacy in the United States mainly comes from the Fourth Amendment. The content of the Fourth Amendment is: the people’s right to be free from unreasonable search and seizure, and must not be infringed. Except in accordance with reasonable grounds, guarantee by oath or declaration of oath, and specify the location of the search and the persons or things seized, no search and seizure warrants shall be issued.

The Fourth Amendment, the Fifth Amendment (no self-incrimination, etc.), and the Sixth Amendment (Miranda warning) are three amendments that have a greater impact on the current U.S. criminal law and procedural law. I personally think it is the most influential. Any criminal case in the United States, perhaps medium-sized or above criminal cases, will basically involve these three articles, and will always ask these three questions: The Fourth Amendment, the main thing is not Unreasonable searches and seizures are related to criminal evidence collection. Can your evidence be used; in the Fifth Amendment, you must not incriminate yourself and you must not deprive citizens of their property without due process. Property includes a lot of things, but it was later expanded to many aspects. For example, the government can’t requisition your car or use your house arbitrarily. It was used in criminal cases at the earliest. The Sixth Amendment may be seen by everyone. It’s called “Miranda Warning” or “Miranda Warning.” Generally speaking, in American movies, when the police arrest people, they should at least handcuff and tell you first: “You can keep silent, but what you say Everything will become testimony in court.” If it looks like this, this is called Miranda warning. Generally speaking, a more savvy prisoner will not speak, or will say to the police: “You must have Miranda (Milandarize) me.”

This picture is of O.J. Simpson (Orenthal James Simpson), a famous American football player. There was a big case in his body, which was a sensation in the United States at the time, because everyone thought he was guilty, and he was eventually found not guilty. He was finally found not guilty for a major reason. At that time, four white police officers rushed into their home and searched without a warrant. At that time, because a trace of blood was found on the car, I wondered if there was an accident in the house. After entering, Simpson’s good friend came out of the house. There were no problems in the house. Simpson himself was not in the house. Without his permission, the police searched the room and found a blood glove. In the end, these evidences cannot be used in court because there is a “principle of exclusion” in the US criminal law. If you obtain evidence through an illegal search, even if it can prove your guilt, it cannot be used. So, Simpson’s wife murder case was finally won. Of course, his lawyer at the time was also very powerful. It can be seen from this case that the Fourth Amendment is very useful. From a certain perspective, it not only guarantees that there will be no unjust, false and wrong cases, but it also causes some real crimes to be let go because of some police procedures. I personally watched a documentary about him on the Internet, and after watching it, I think he is really guilty.

Lawyers and Hackers | #4 Fourth Amendment: From Citizen Property to Data Privacy

As last time, let me talk about the origin of the Fourth Amendment, which also came from the United Kingdom. Basically all these constitutions are from Britain. It’s the Sir Edward Coke I mentioned last week, because he is a very powerful British jurist, and he raised some very modern questions. Now the United States and the United Kingdom are still using some of his statements at the time. Sir Edward Kirk said: “Everyone’s house, everyone’s castle and fortress, he can protect himself from infringements and atrocities, or he can rest here.” It should be the 16th century. It was already very advanced. British politician Peter also said: “My hut is my castle. Wind can enter and rain can enter, but the king can’t enter!” The reason behind it is police power. Public security rights are generally in the hands of the government, and individuals cannot exercise their security rights. For example, there are police, procuratorial organs, etc., which are the manifestation of the government’s public security rights, which is a kind of legal and necessary evil and violence. Otherwise, he has no way to ensure that citizens’ property and personal safety are not harmed by people with evil intentions. Public order (government) is a kind of legal violence and necessary evil. If it is not restricted, it will become a tool used by the government and corrupt officials to oppress the people.

At present, many states in the United States (such as Texas) retain the “Castle Law” and the “Stand Your Ground Law”, which are important basis for judging justified defense. Most of these states are Republican states, and Texas “Castle Law” is really famous. I often see strange news in Texas. For example, someone broke into someone’s house and was shot and killed. The judge found him not guilty. Basically, there are many things in states with strong folk customs. Castle Law”.

There is also a theory derived from the “castle law” called the “non-concession law”, which is very important in legitimate defense. The current situation in many states is that if you are attacked, for example, if someone actually stabbed you with a knife, you can fight back and you don’t need to evade first. If you fight back immediately, moderation can also be a legitimate defense. But some states say that if you don’t run away first, and you don’t have to fight back, then it’s not a legitimate defense. The theories of each state in the United States are different. The “Non-Concession Law” is a theory derived from the “Castle Law.”

How the Fourth Amendment was written from the Common Law of the United Kingdom to the U.S. Constitution has a long story, just like the First Amendment. The main reason was that the British colonized North America at the time, which was also in the same background as the First Amendment. After the economies of the American colonies became more and more developed, they became unwilling to pay taxes to the British. Because at that time, Britain had to levy heavy taxes in America to finance the war in order to fight. The reason why the American colonies are unwilling to pay taxes: The British want to collect money, and the Americans say they can pay you taxes, but you have to let the British Parliament give me a position. I want political rights. The British think about it and say that they cannot be given political rights. The Americans felt that they had to pay taxes and refused to give political rights. The British only took advantage of the benefits and did not give any benefits. They felt very disadvantaged. So they refused to pay taxes and started smuggling. They became more and more crazy. At that time, the 13 colonies of the United States were smuggled across the country, and everyone was smuggling. Tea was the most smuggled.

The British thought of a trick to prevent smuggling. At that time, this thing was basically banned in the UK, and used in North American colonies, called general warrants and writ of assistance. The aid warrant is actually a type of general search warrant to maintain control of the colonial economy. To put it simply, the Writ of Assistance allows customs officials, sheriffs, justices of the peace, police officers and other people of the British King to enter any house to search for smuggled goods, without specifying which house or goods are being checked. . In fact, if I am a sheriff and want to mess with you on a whim one day, I will rush into your house directly. As long as I have an aid warrant, I can check anything at will. The reason can be edited. This was very convenient for the sheriff, and caused a lot of trouble to some people in the North American colonies at that time, because the aid warrant was very overbearing and it was indeed annoying to the people.

Another obvious advantage of the Writ of Assistance is that it is good for the government and bad for the people. It is not subject to judicial review. It’s not that you think the aid warrant is unreasonable. I will take you to court and the judge’s decision will be sufficient. Writs of aid are not subject to judicial review. There is another one. The Writ of Assistance is valid for a long time, from the day it was issued to six months after the death of the king who issued it. Nowadays, the more common search warrants in the United States also say that after you have checked the matter, they will be automatically invalidated, but it was not at the time. The general search warrant has a long validity period. It should be George II at that time. He may not have signed all the aid warrants himself, but anyway, there must be someone who says that the King of England grants you power, it’s almost the same anyway.

Later, in 1760, King George II hung up. Because of the automatic invalidation, the American colonies wanted the king to hung up. Just taking advantage of the gap, they came out to oppose the aid warrant. In February 1761, attorney James Otis represented the Boston businessman in the Massachusetts High Court and attacked the legality of the writ based on the political and social rights theories he discovered in English common law. However, most of the judges at the time were actually appointed by the King of England, and it is conceivable that they were not successful. This incident caused a great sensation in the way, because it was also mentioned in the ancient Chinese book that “the world is suffering for a long time,” and now it is “Americans have suffered for a long time.” Later, the second president of the United States, John Adams, was in court at the time. He regarded this incident as “igniting the spark of the American Revolution.” The latter thing should be familiar with American history. The so-called “Boston Tea Incident” was later said to be the fuse of the American Revolutionary War. From 1917 to 1973, the British were vying to check tax laws, and he decided on one in the American colonies. According to the tax law, tea is actually taxed. But later, many people had different interpretations of the matter. The mainstream interpretation generally said that because of the tax law, the British still had to find a way to collect taxes and exploit the American colonies. The colonists were really angry. In 1773, the colonial resistance organization “Sons of Liberty” disguised as Indians and sneaked into merchant ships, dumping a whole ship of tea shipped by the East India Company into Boston Bay in order to resist the “Tea Tax Act” promulgated by the British Parliament in 1773. . In 1775, the American Revolutionary War broke out.

After the Americans founded the nation, think about how miserable they were under the aid warrant. Therefore, we must not do this again in the future. Basically, the law of rights is all because the British were so miserable at that time, so when the Americans founded the country, they thought in their hearts that we must never go the same way as the British. We must ensure freedom and democracy, and we must never be exploited again.

In fact, they themselves are not much better. In the end, the regulations of the amendment were misused by the government. However, it can be seen that when the concept of the Fourth Amendment began, it was mainly to ensure that property was not violated. There are four main issues surrounding the privacy of the Fourth Amendment.

Question 1: Are searches or seizures conducted by the government regulated by the Fourth Amendment?

Not protected by the Fourth Amendment

  1. Information provided to third parties and transferred by third parties to the government is not protected by the Fourth Amendment (United States v. Miller)
  2. The trash that the parties discarded in the trash can on the side of the road is not protected by the Fourth Amendment (California v. Greenwood)
  3. The smell from the car or luggage is not protected by the Fourth Amendment
  4. Photos taken from high altitude by high-altitude precision cameras are not protected by the Fourth Amendment (Dow Chemical Co. v. United States)

Protected by the Fourth Amendment

  1. Do not use electronic eavesdropping devices to eavesdrop on personal calls (Katz v. United States)
  2. Do not use infrared thermal imaging cameras to detect heat emission inside private houses (Kyllo v. United States)
  3. It is not allowed to install a GPS tracker on an individual’s car to track an individual’s itinerary (United States v. Jones)

The above are some examples of regulated and not regulated by the Fourth Amendment. I will explain to you one by one.

In the first example, information provided to a third party and transferred by a third party to the government is not protected by the Fourth Amendment. The case at the time was about bank records. Miller had some records in the bank at the time, and the government was investigating him, and the bank handed over his records to the government. Miller was very angry and took the matter to the Supreme Court. Basically all the examples I put forward went to the Supreme Court. Finally, the court said that information provided by a third party is not protected by the Fourth Amendment. Where is the biggest impact of the case? Think about Facebook, twitter, those social platforms in the US, the reason why they haven’t been cured for many years is because of this reason. He checks what you have on the third-party platform, and he does not need to ask for your request. Because this case has not been overturned so far, so if you post anything on the third-party platform, think about it, now you can check what you post on the third-party platform without your permission. The operators of the tripartite platform are willing to give to the government. I think this is the case that has the greatest impact on Internet companies, and it is called third-party liability in law. Because only the Supreme Court can overturn the Supreme Court’s case, and it is estimated that it will not overturn it in a short while. Therefore, the operators of the Internet platform are given a lot of freedom, so that it can be used by public devices.

In the second example, the rubbish that the litigant discards in the trash can by the roadside is not protected by the Fourth Amendment. To put it simply, like we are in China, there are public trash cans under the general community, and the United States does. The trash you throw on the side is not protected by the Fourth Amendment. The more interesting thing is that I often see that the police in the United States go to investigate some cases. The first thing is to pick up the trash can outside the house. Because you can search at will, if you search indoors, you must have a search warrant. Picking up trash cans is a job that American police often do, which is more interesting.

In the third example, the smell from the car or luggage is not protected by the Fourth Amendment. There is no Supreme Court decision, but there is a circuit court decision. These cases are basically related to traffic control, such as speeding and drunk driving. This is called traffic stop in the United States. Basically, it was said that the defendant might be taking drugs. When the police checked, he didn’t want to check whether you were taking drugs or not. At first, the speeding check for drunk driving resulted in a smell of marijuana and arrested you. Basically It’s all this case. Of course, some people took this case to court, saying how you can check my car. But anyway, the judgment basically said that the smell from the car or luggage is not protected by the Fourth Amendment. The verdict is actually quite reasonable, including you, the customs, they will also use dogs to check if there are any strange things in your bag.

In the fourth example, photos taken from high altitude by high-altitude precision cameras are not protected by the Fourth Amendment. This case is also very interesting. The Dow Chemical (Dow Chemical) v. United States case is about a group of US Environmental Protection Agency who want to investigate it and perform normal administrative inspections. Dow Chemical said it was impossible and rejected it. People from the Environmental Protection Bureau thought that since they couldn’t check you, we would think of other ways. At that time, there was no drone. It was probably taken with a high-definition camera on a helicopter, mainly to take pictures of what was going on in the factory. This case was also brought to the Supreme Court, which means it can be shot. Including such cases afterwards, someone planted marijuana at home, and the federal government suffered from no evidence. Besides, that person planted marijuana at home and planted a high tree wall outside, so the inside was not visible at all. The federal government thought of a way: take a high-altitude precision camera to take pictures of the inside and find some strange things that look like marijuana in the yard, and use this as evidence to check him. This is a subsequent case, which is not protected by the Fourth Amendment.

The above is an unprotected case, so what is protected by the Fourth Amendment?

In the first example, electronic eavesdropping devices must not be used to eavesdrop on personal conversations. This is easy to understand, no matter what method is used to eavesdrop on you, electronic eavesdropping is not allowed. Of course, if your ISP has recorded your call, and he manages the ISP request, it will be classified as the first unprotected one. Now I guess that most of them are going to ask the ISP, not directly monitoring you. Although it is a very meaningful judgment, it may not be used now.

In the second example, infrared thermal imaging cameras should not be used to detect heat emission inside private houses. What is going on in this case? It’s also very interesting. There is also someone who grows marijuana at home. I don’t know why Americans love to grow marijuana in their own homes so much that they must be at home. What is the problem with growing marijuana? Let me tell you that marijuana must be grown in a greenhouse, and you need to buy high-wattage lamps, which emit high heat. The conditions are very harsh and use a lot of water and electricity. When investigating this person, the federal government thought that if a high-wattage lamp was used, the heat emitted from the house would be different from ordinary ones. This is why he used an infrared thermal imaging camera to photograph his house and check his utility bill to see if it was different from other ordinary people. Anyway, it turns out that this person is indeed growing marijuana at home. The federal government has indeed caught evidence that the utility bills and thermal imaging look really suspicious. In the end, he was arrested for these reasons. Of course, he later brought the case to the Supreme Court. The Supreme Court ruled that the infrared thermal imaging device could not be used. Anyway, a more interesting case, but in general it may not be used. I think the federal government came up with this idea, which is very interesting.

The third example is that you must not install GPS trackers on your car to track your personal journey. At that time, the federal government installed a gps tracker under his car to check whether this person was acting suspiciously and check his itinerary. This person is also a drug dealer and another marijuana-related case. The case was also brought to the Supreme Court. Said it is not allowed to install GPS in other people’s cars. So looking at the main issues of the Fourth Amendment, most cases are the first issue, what is protected and what is not. Because there is no first, there is actually no later. It can be seen from these, how far the government can monitor you in the United States.

Question 2: Does a search or seizure carried out with a search warrant meet the requirements of the Fourth Amendment?

There is nothing particularly complicated to say, mainly whether the search warrant is a general search warrant. Because the general search warrant is now banned, the search warrant must state who it is and what it is. If the search warrant is incorrectly signed, there may be problems. If you sign the judge of the search court, it is not a neutral judge. For example, the judge has personal grudges against you, so if he signs a search warrant, it may be invalid. Such cases may be relatively rare.

Question 3: Does a search or seizure conducted without a search warrant meet the requirements of the Fourth Amendment?

  • Fugitive (Hot Pursuit)
  • Emergency situations related to life threats
  • Customs (Pat down)
  • Traffic control

In special circumstances, the federal government may indeed not be able to immediately sign a search warrant. The first one is the fugitive. When you are chasing the fugitive, the fugitive may run back to his home. There is definitely no way. If you sign a search warrant and then catch it, the fugitive has already run away, so the federal government is chasing the fugitive. You can break into someone’s private house without a search warrant.

The second is an emergency related to life-threatening situations. For example, if you are a policeman, you suddenly hear a cry for help coming from the house on the street, and you must rush in first. In several situations related to life-threatening situations, you must rush in first. It doesn’t mean that you have to sign a search warrant if you want to break into a house. After you sign, everyone will die.

The third is customs. Because like when you fly in the United States, you always go through an x-ray first. Generally speaking, after the x-ray comes out, if he finds that there may be a foreign object on your body, there will be a yellow square mark on the screen. Generally speaking, the customs will ask you if I can pat down you. Of course, in general, no one may refuse. He will ask you if there is any strange part on your body that you cannot touch. For example, if you are injured and where you can’t take pictures, he will ask you first, but generally he will take pictures with his palms instead of touching you. He uses his palms and the back of his hands to feel whether there is something hidden in your body. Generally speaking, for example, what coins, or if you put a wallet or cell phone in your pocket, you can take a picture of it. If he feels an object, he will ask you if he can take it out. After taking it out, if it is white powder, he suspects it is cocaine. He heard that it was really cocaine, he could catch you, and this package could be used as evidence in court in the future. If he took it out and saw it was white powder, he squeezed it, as if it were drugs. After confirmation, it was really drugs. I caught you. This package cannot be used as evidence in court. So there is a big limitation. You can only use vision to check things, and you can only use vision to judge what it is. You can’t use physical methods, such as pinching.

The last one is traffic control, checking for drunk driving and speeding. Generally speaking, a sign will be erected, and vehicles will be checked. To maintain public safety, there is no need for a search warrant.

Question 4: To what extent is evidence of violation of the Fourth Amendment obtained through search and seizure still acceptable in court?

There is a very important principle here. The first is the two principles, the first is the exclusion principle. It means that if you do not have a search warrant and get evidence illegally, the evidence itself must be excluded and cannot be used in court. The second principle is called Fruit of the Poisonous Tree (Silverthorne Lumber Co. v. United States), which means that a series of evidence you find based on the evidence cannot be used. For example, if you break into a private house, you are a policeman, and you find the key in a private house, you take the key to open a lock. For example, when you open the lock of a drawer, you find a large bag of drugs hidden in the drawer. Then neither the key nor this big bag of drugs can be used in court. The first piece of evidence is poisonous, and the following series of pieces of evidence are unusable. There are mainly four questions.

So how did the Fourth Amendment become the discussion we are seeing now as the right to privacy? I personally divide it into four stages. The current stage should be the fourth stage. Excluding the current stage, there are three main stages:

Stage 1: Enlightenment

At this stage, people may have such concepts that others cannot turn over my letter, others cannot enter my house, etc. However, the term privacy is not explicitly mentioned in academic literature or laws. I think it is a period of enlightenment.

An interesting law was passed in 1792, called the Postal Service Law: To ensure the sanctity and privacy of mail, postal officials are not allowed to open any letters under their responsibility unless they cannot be delivered.

The United States postal system is equivalent to being run by the state. A large part of the approval at that time was also because there were serious partisan disputes. The parties will doubt each other whether the other party will arrange some cronies to be postal officials to secretly open my letter.

Lawyers and Hackers | #4 Fourth Amendment: From Citizen Property to Data Privacy

The way to protect the letter from being peeked is the fire lacquer seal. The picture is my own. It was a custom-made one at that time, the earliest fire lacquer seal. Generally speaking, your name is written in capital letters in the middle. I wrote my English name with “G” in the middle to prove that the contents are mine.

The second stage: the beginning of modern privacy (the end of the 18th century and the beginning of the 19th century)

At this time, the right of privacy has gradually begun to get closer to our current right of privacy. For example, people start to feel that apart from others who cannot open my letter, there are some personal information that I don’t want people to know. For example, I may have a disease, or I don’t want people to know how old I am. There were also some large-scale technological developments during this period. People also pay more and more attention to the concept of privacy. This period was mainly from the end of the eighteenth century to the beginning of the nineteenth century.

The reason why everyone began to have a preliminary concept of modern privacy is the census. Census records from 1790 to 1870 are public records and not protected. In fact, American law enforcement officers will post these records in the center of the community for the public to view and correct their errors. In the earliest census, he would not ask some particularly complicated things. He might say what your name was, and might not ask your height and weight. You may ask how old you are and what occupation you are in. The first questions are simple. Later, there are more and more questions, such as whether you are a minority, mainly black, or immigrants. They will ask whether you are from Germany or Italy. of. You will also be asked if you have any physical diseases or if you have a criminal record. Census officials will write the collected information on paper and post it in the community to let people correct it. But if you have a criminal record, you definitely don’t want to be known. For example, I am a possible thief, and I finally moved to another community. I want to change my mind and be a new person. You make my criminal record public, and everyone knows that I am a thief. Including some hidden physical illnesses, I think there must be some people who don’t want people to know about it. Because these sensitive information did not want others to know, everyone began to feel that they were unwilling to conduct a census. Therefore, the “Census Act” of 1879 stipulates that census records must be kept confidential, and disclosure of data will be punished. From then on, the census data must be kept confidential and never made public.

The second background is the development of print media. In the previous lesson, we mentioned that there were very few domestic American media at that time. At that time, there was only one domestic media in the United States. From 1850 to 1890, the circulation of American newspapers increased from 100 (800,000 readers) to 900 (more than 8 million readers), an increase of 1,000%. More and more people like to read newspapers, but what’s the disadvantage of more newspapers? Because of the fierce competition, in order to increase the amount of reading, the content of newspapers has become more and more eye-catching, such as various scandals, gossip, urban legends, and spiritual events. This type of news is also called “pornographic news.”

Lawyers and Hackers | #4 Fourth Amendment: From Citizen Property to Data Privacy

It was mainly a comic image at that time called “The Yellow Child.” The image of Huang Xiaozier is mainly a main character published by Pulitzer. Why does yellow become a symbol of pornography, actually comes from here. But the yellow kid did not mean that. His character is a child from a slum, so his language is very vulgar, and some things he says are also gossip, much like the short things that the grandparents will discuss now. So later it gradually became the gossip now and then became a symbol of pornography.

The third background is actually the progress of science and technology. There are mainly two, the first is instant photography, and the second is telegraph.

Lawyers and Hackers | #4 Fourth Amendment: From Citizen Property to Data Privacy

The first is instant photography. We can take pictures immediately, but this is not the case. After you take pictures, you have to wait a long time to come out. In 1884, Eastman Kodak Company launched the Kodak Brownie Camera, which laid the foundation for photography. The basis of popularization. I think photography has just started, especially for reporters now. He doesn’t need to paint anything he wants to record, he can shoot immediately.

The second is the emergence of the telegraph. In 1851, with the establishment of the New York and Mississippi Printing and Telegraph Company, Telegraph Communications officially moved towards commercial operation. 55 years later, the company was renamed Western United Telegraph Company to commemorate the connection of the telegraph network in the west and east into one system. What we now call Western Union, as you may know, Western Union is mainly doing remittances now. Because he basically seems to only do remittances now, and the telegraph business is no longer done.

Because the telegram can be directly tapped or robbed, and instantaneous photography can secretly take pictures of you, your ugly attitude will also be photographed, causing people at that time to start to worry about privacy. At that time, there was also a case where the government tapped the people. At that time, the Supreme Court ruled that the government could wiretap. This caused a great concern for the privacy of the American people at the time. If they wanted to protect their privacy, some people would also stand up against the government using some means to infringe on their privacy. I think it can be said to be the beginning of privacy right now.

At that time, there was a very famous article published in 1890 on the Harvard Law Review. The title of the paper is “Privacy”, and all privacy talks will talk about two people: Samuel D. Warren and Louis Brandies, who co-authored this article at the time. Because of a series of technological advancements, there are some things that have caused these two jurists to have great concerns about human privacy. There is a sentence in it, saying, “Countless mechanical equipment heralds that one day in the future, our whispers in the secret room will be like a loud announcement on the roof.” At the time, I didn’t know how many people understood it, but now it’s true. God prophesied. Because you read it in newspapers or various articles now, because of the development of technology, because of the appearance of computers, mobile phones, and the Internet, we no longer have privacy, and we have completely become transparent people. This is a very prescient article. If you are interested, you can also read it.

The third stage: the rise of government surveillance and the introduction of privacy laws (after World War II)

At this stage, on the one hand, the government’s monitoring of the people is getting stronger, and on the other hand, a large-scale privacy protection bill will be introduced. There are two people who play a very important role. The first is John Edgar Hoover (the first director of the FBI after the restructuring of the Bureau of Investigation, not the President Hoover): using people’s views on communism Fear to strengthen government surveillance. Not only did Hoover eavesdrop on the opinions of his critics and those he didn’t like, he also kept a detailed archive system that recorded the black material of hundreds of celebrities, politicians, professors, and others. Although he has a hard-line style, he still studied law, which is amazing. He obviously doesn’t care about privacy at all.

He desperately carried out surveillance in the United States, using people’s fears to investigate anyone, mainly to investigate some celebrities and politicians. One thing was basically proved to be true later. At that time he chased Martin Luther King, everyone should know who it was, a well-known black civil rights activist in the United States. He found out that Martin Luther King had an affair. This is not good for others to know, because some people may feel that as a leader of the civil rights movement, he should be very decent in his private life. He sent the FBI to write a letter to Martin Luther King, saying that either you commit suicide now, or I will make your foreign language matters public and you can do it yourself. It should be seen from this incident that Hoover’s methods are very despicable. It is said that the president of the United States thinks that he is a devil, because it resembles the image of Big Brother in the current novel that we will talk about later. People like Hoover really checked everyone, and he also checked Nixon. We now see that many Nixon scandals were discovered by him. He also used these things to threaten the politicians at the time.而且没有人敢叫他下台,你要我下台,你自己看着办,因为他一直在不停现在监听别人,监控别人搜集人家,所以他自己必须要保持作风很正派,所以胡佛除做工很强硬之外,他自己本身是个没有多大黑料的人,因为他没有办法,因为肯定也会查到自己的,你手下的人肯定也会查他。因为别人家会查你,如果你自己有黑料的话,人家也拿出来干掉你,所以他自己作风是很道德的。

律师与黑客 | #4 第四修正案:从公民财产到数据隐私

第二个人是理查德·尼克松(第37 任美国总统),水门事件我也讲过,我不具体讲什么事情,反正也是监听,尼克松监听对手,所以大家开始意识到,政府的大规模监控,民众开始切实感受到政府在监控,我们没有隐私。在尼克森卸任之后,胡佛也退休了。尼克松下台之后,美国联邦政府可能有点矫枉过正,之前大规模监听,现在我们来改正一下。通过了一系列隐私保护有关法。

1970 年的《公平信用报告法》保护信用报告机构收集的个人财务信息。该法案限制了哪些人可以获得这些信息,并要求机构采取简单的流程使消费者可以获取、审查并更正其信息。

1974 年的《家庭教育权利和隐私法》禁止教育机构未经过学生家长或学生的书面发布或披露和学生教育记录有关的信息。中国学生可能比较经常遇到排名这种事情。因为我们可能小学、初中、高中,经常考完试,大家排个名谁是第一第二,全班五十个人,还从一排到五十。反正大家都知道谁是第几名。美国是绝对不允许的。美国的法学院是唯一的有排名机制的地方。他们的排名是属于说你是前10%,或者是前20%。你只知道一个大概的范围,你是不知道你自己具体是在哪。作为一个受过排名系统折磨的中国学生来讲,我很羡慕,我觉得这样子蛮好的。除此之外,你的信息、你的成绩,除你知道,你爸妈知道,你导师知道,其他学校里的人任何都不知道。但国内有很多高中,他会把你排名全校公开,还会请家长来看。美国学校的话,任何人是没有办法要求你的信息的,学校校长也不能看,但是他偷偷的看,是另外一回事情。当时法学院有个编辑部,要进的话,编辑部会给我们提供一个叫免责协议,说我放弃家庭教育隐私保护法里面的权利,我要把我的成绩也提供给人看。我一个中国教育背景的人。事情还是蛮不可想象的。

1974 年的《隐私法案》禁止联邦政府未经授权泄露持有的个人信息。任何人有权审查自己的个人信息,要求改正,并被告知任何披露。

1978 年的《金融隐私权法》规定政府官员必须使用搜查令或传票来获取财务信息

在1990 年之后,密码朋克遇到达到一个高峰。不仅确定代码是言论,而且加密软件可以用了。2000 年判下的案子,美国政府也的确松口,改自己的进出口的法律。从某程度上来讲,我觉得密码朋克运动算是比较成功,政府的监控慢慢变少,民众越来越有能保护自己隐私的武器。人民的隐私站高峰是2000 年之前,结果刚放宽之后,911 事件发生了。

律师与黑客 | #4 第四修正案:从公民财产到数据隐私

911 实际上最大影响是什么?美国国土安全部应运而生,公民隐私开始向反恐和国家安全让步,很好理解,因为我可能都快死了,我还在乎什么隐私?政府快点把恐怖分子都抓起来!大家觉得反恐最重要,所以不管隐私,政府最早的时候可能还好,当时立马通过一个法案,叫「爱国者法案」,于2001 年10 月26 日由小布什签署。法案以防止恐怖主义的目的扩张了美国警察机关的权限。例如,根据法案的内容,警察机关有权搜索电话、电子邮件通讯、医疗、财务和其他种类的记录,或者在没有法官批准的条件下进行秘密调查。

这一阶段是政府权力基本上无限扩张,也比较好理解,因为我说过大家都在担心自己明天会不会也死掉,觉得隐私权可以让步。但是时间长之后,美国有零星的恐怖袭击,但是没有大规模的。过几年好日子之后,大家又开始想爱国者法案是不是有点过的。政府已经是随便查你,有些人也被骚扰,比如说我在facebook 上发说我明天要去炸学校,可能是开玩笑的,结果被FBI 上门。因为当时有很多这样的事情,有很多人就开始觉得说好像不太对劲,你们是不是查太过分,好像恐怖主义没有那么严重?

又因为斯诺登恩的事情,发现政府居然在大规模监控,在美国国内引起很大的轰动。把美国人带回胡佛在的时候恐惧里面,还有密码朋克前期的恐惧。在2010 年爱国者法案失效之后,奥巴马当时推出一个新的叫「美国自由法案」,当然也是缩写,基本上是改版的爱国者法案,其实没有改多少,说你现在不能随意查,你必须要确定百分之五十以上的可能性确定人是恐怖份子才能查。原来是说百分之一的可能性可以查,现在至少百分之五十以上确定人是恐怖份子的时候,你才能去做。但是实际政府一点有了权力之后,很难收回来。

我个人觉得其实是因为互联网公司,可能当时最早的互联网公司也没有肆无忌惮地去利用用户隐私,但是后来因为有美国自由法案跟爱国者法案,可以说可能随时会问我要资料,特别是现在社交网络,会事先收集好,毕竟FBI 会随时问我要,而且也不知道他会要到谁,我先收集好。目前还是没有办法对平台进行监管,只能指望美国通过现在的隐私保护法,因为当时已经说第三方平台提供的信息可以不需要搜查令。

最后还讲一下,我觉得正是因为如此,才开始我们当今的第四阶段。现在为什么大家又开始关注隐私,对最主要的事情是2018 年Facebook「大选门」 事件被曝光。美国人很把自己的民主制度当回事情,一直觉得民主制度是世界上最好的,但是这事情之后,美国人发现,引以为豪的自由民主居然是被别人操控的。当时美国国内引起很大的轰动,居然一个公司可以开始操控民主选举,又把美国人带回那个噩梦中。民主居然也能受到影响,基本上是狠狠的打美国人的脸。他们很引以为豪的一个东西,一个所谓的美国梦破碎。

还有两个事情,我就是受害者。一个事情是2018 年,万豪(Marriott Hotel)旗下喜达屋酒店的数据泄露,将近4 亿用户的的身份信息被暴露在互联网上。第二个是2017 年,美国信用评估机构Equifax 遭遇黑客攻击,被盗取了包括社会安全号、信用卡号、用户姓名和地址在内的1.43 亿美国人的信息。

万豪只发一封信,告诉你说你的信息被泄漏。因为是你住酒店,他要复印你的护照的,到现在为止,万豪一点说法都没有给。因为万豪在美国国内的集体诉讼还在打,应该在欧洲已经是赔过钱。反正简单来讲死不赔钱。因为他是喜达屋,是被万豪收购的,推卸责任。反正到最后现在为止还没有一个定论。

第二个事情,2017 年,Equifax 是美国的一个信用评级机构。算是个官方的系统被黑客黑之后造成很严重的信息泄漏。我自己本人就是受害者。因为我当时收到,因为Equifax 的信说你可以去查你是不是受害者。我把自己社保号码输进去看,发现已经泄露了。已经三年了,到现在为止也是没有定论。Equifax 给我发三次,第一次是说让你去查有没有泄露。如果你需要的话,你可以去参加集体诉讼。赔偿方式有两种,一种是赔偿你125 美金,我当时选择我要钱。当然如果说你的确是造成更严重的伤害,你可以要求更多的赔偿,但是你要举证据。第二个是给你提供免费的信用监控服务,类似支付宝上面的芝麻分数,美国查信用报告是要付钱的,说给你提供一个免费的。

律师与黑客 | #4 第四修正案:从公民财产到数据隐私

这个图是自己从我的邮箱里面截出来的,应该是我收到的第二封信。我当时是选择要钱,当时是他们发现钱不够赔。第一个他是要求要钱的人提供更多证据,第二个说还是发现问你说你愿不愿意换免费的信用监控服务,实际上就是我们没有么多钱赔。现在应该还没有收到第三封信,事情还不知道。我不知道我自己丢了什么信息,他没有跟我说。应该也没有办法查,我这125 美金不知道到底什么时候才能拿到。你想想,信用卡可能被盗刷,但是反正丢那么多信息,想想还是还是蛮惨的。

今天美国的部分大部分都讲完了。但我最后想讲一下通用数据保护条例。有些人有这样的困惑:美国算是个我们想象的保护隐私保护得还算是比较好的国家,为什么美国到现在为止没有一个通用数据保护条例这样子的东西,但欧洲现有了,欧洲都没有互联网企业。欧洲为什么特别在乎?因为主要是跟纳粹有关的,因为欧洲当时也是很早有人口普查。当时他人口普查是要问族裔的,你是不是犹太人。后来,纳粹德国就拿人口普查的数据对犹太人进行屠杀,给整个欧洲造成很大的恐慌。所以在1950 年的时候,欧洲通过人权保护公约第八条写的要保护隐私权。

背景不一样,美国遭遇的事情不一样。采取的方法,也不一样。欧洲是因为经历过大规模的纳粹屠杀,所以让他们现在知道,绝对不能泄露公民隐私。但美国没有经历过样的事情,美国经历的建国以来可能比较大的事情的话,911 主要算是比较大的事情,所以他们经历的是反方向的事情。他们的一个感觉是,说我需要政府监控,要不然的话恐怖分子可能会来袭击我。当时2016 年通用数据保护条例推出来之后,在欧洲很大的轰动,有两年的所谓的给政府、给企业一些自己做改进的时间,让你自己去适应条例。2018 年生效,国内中软文写的说「欧洲最严数据保护条例推出」。真实的情况跟文章写的完全不一样,因为欧洲政治体系不一样,欧盟不像美国,是个合众国,联邦的法律各州都要遵守。欧盟通过的东西是没有强制性的,只是给你一个说一个指导,具体的实行要各国去实行的,比如说像法国特别积极,已经罚google 、罚苹果超多互联网企业,但是像意大利就不罚。具体通用数据保护条例能实施到一个什么地步,取决于各国。如果欧盟不能团结起来,一起去努力叫各国去推动数据保护,去进行监管,轻轻处罚的话,实际上没用的。

第二个,有一个很大的问题,欧盟的通用数据保护条例用学法律的人的话说就是「没有牙(no teeth)」。 why?法律是必须要有牙的,因为不咬你的话,你不知道法更多可怕。没有牙,是没有用的。比如说通用数据保护条例现在最大的处罚是罚款。你想想说到底是大公司能交的起罚款,还是小公司交得起罚款? Google、facebook、苹果,他们肯定是很轻松。但是中小型互联网企业,有钱去交罚款吗?实际上是没有的。对于大公司来说,罚款可能只是不痛不痒的处罚。对于小公司来说,罚款可能真会要命的,你没钱,你怎么活下去。又不可能说我只罚大公司,那就不公平了,对所有人一视同仁。大家犯个错,不可能只有大公司犯错,小公司不犯错的。通用数据保护条里面写很多,比如说要用一个技术系统,一些内置系统。公司引入系统,不管是你自己去开发,还是去买别人的服务,都要付钱的。规模大的公司肯定更有时间、精力、钱还有人去执行这个事情,小公司有时候没办法,因为你肯定一开始给重心还是放在自己的产品身上,不会说隐私保护,毕竟你得先活下来。欧盟还是蛮不合理的,说他们要改版,但是不知道改版的话会,哪一年出来。

2019 年,美国国会层面也引入了一个法案叫「不跟踪法案」,意思说网站顾客的数据不要用。现在具体什么时候通过还要看,因为又发生新冠这样的事情,大家知道美国他们也想开发一个健康码这样的软件。某程度上来讲,又会加强政府的现在监控。最后能做到哪一步,实际上真很难说。

今天的课程差不多了,可能没有,如果有什么问题的话,可以在微信给我提问。


提问:如果是在美国的话,如果是outlook,不算第三方吧?

Katt: 实际上你还也是第三方,他是微软开发的,除非你自己搭建服务器,否则没有办法。

提问:因为我们无论如何要通过邮件来递送,基本上所有的邮件都是第三方提供的,有什么别的选择吗?

Katt:美国有一个比较好的加密邮件的软件,叫做proton mail。他用的是PGP 加密,说是除了量子计算机,没人能破解。当然我也不知道量子计算机真的能不能破,可能能破,但是总归比我们现在使用的服务更让人安心。否则的话我觉得用其他的都是会有被拿走的风险。

提问:还是想请教你。我们只能用很个人式的无政府主义的方法来保护自己的吗?

Katt: 目前的话我个人觉得是的,因为大部分服务都不可靠。还有一点,虽然很多人会讲,我自己也感觉,在国内可能的确很多人是不在乎自己隐私。在便利性跟隐私方面,至少在我父母一辈他们肯定是选择便利性,不选择隐私。现在年轻人开始慢慢有隐私权概念。要等这些人真成长起来才行。我觉得差不多跟我差不多大的年轻人,已经开始有比较强的意识。之后那一代肯定会有更强的隐私意识。但是具体的人做到什么地步,真很难预测。

提问:加密虽然对我们少数人来说不是太难的事情,不是对一般大众来说要自己行使加密权,会加密的方法其实还是有点难度的。

Katt:大部分加密的东西都做得不够好用。没有办法,是必要的牺牲,你要加密,你得放弃一部分的便利性。

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