It might be an end-run around the 4th amendment if the government was ordering companies to do mass surveillance (though we can argue about whether the 4th amendment has anything to do with surveillance at all). But the government doesn't need to do that. The companies already do all the surveillance, and people happily hand over to those companies their data. Is it an end-run around the 4th amendment for the government to then compel companies to provide this data? It's not like the subpoena is a new and novel legal instrument. Even in 1790 the government could compel companies to hand over all the information they had about a target of investigation.

It doesn't matter if people are happily "handing over their data" - the government still needs a warrant to request the information. In United States v. Warshak it was ruled that a person has a reasonable expectation of privacy in his/her emails and that the government violated Warshak's Fourth Amendment rights by compelling his internet service provider to turn over his emails without first obtaining a warrant.

Warshak is only binding law in the Sixth Circuit, and I don't think it's good law in the face of the third party doctrine.

That's very true, but as long as the company is doing the 'surveilllance' and not the government, the warrant can be done on a just-in-time basis. This essentially all that Prism is, after all.

> It's not like the subpoena is a new and novel legal instrument.

Subpoenas are intended to recover specific pieces of evidence to prove guilt in a trial. They are not meant for blanket vacuuming of data, or for discovery.

Not true. Discovery subpoenas are well-established legal instruments; the term 'subpoena' just means 'under penalty,' in other words it carries the authority of the court or issuing agency to impose punishment for non-compliance with the terms. See for example http://www.weil.com/files/Publication/9f7ab3cd-f7d4-4eb5-b98...

The term 'discovery' has a specific legal meaning, and I'm not sure if that was what you actually meant.

Subpoenas are a basic tool of discovery, a very broad instrument for collecting relevant information. See: http://en.wikipedia.org/wiki/Subpoena_duces_tecum

  It's not like the subpoena is a new legal instrument

True, but there isn't an 18th century analogue to a company that has all of your personal correspondence.

There were newspapers, which people would post open letters in. I seem to remember a Reddit post about some gentleman calling another one a "scoundrel" and a "coward" and challenging him to a duel.

Later (in the 19th century), there was Western Union...

I like this point, but I have some questions.

1. What information would the newspaper keep that isn't published? Would they file all the envelopes of regular correspondence?

2. How deep and old would Western Union's records be?

1. The envelopes, probably not. They would probably at least keep a log of correspondence received and sent, accounts payable and receivable, payment receipts, etc. If they have stories that make factual claims then they'd want to retain the journal/notes that went into each story for some nominal amount of time as well, if only to defend their name later.

2. Don't know, but the easy answer is "As long as the government required it to be". Even the NSA gets rids of their data after 5 years (or so they say).

In the 18th century as now you could have chosen to give all your personal correspondence over to some company.

But why would you? There's no purpose to having a company store all of your letters.

Using GMail gives me a free email account with lots of storage, search, and spam filters.

> Even in 1790 the government could compel companies to hand over all the information they had about a target of investigation.

I don't think they ever could compel companies by specifying the target as every customer on the off-chance that some where foreigners.

They don't need to do that.

They just need to say "retain all data for XX years". Retention requirements are by no means a novel legislative requirement, you see them everywhere.

Now that PhoneCo. is holding all the data instead of the NSA, the NSA can then just ask the phone company to provide data on an as-needed basis using standard warrants/subpoenas using some variant of the Prism automated FISA/NSL-compliance system.

"This is an interesting approach to the Fourth Amendment: pressure most everyone to agree, in advance, to waive their rights under it."

https://www.google.com/search?q=This+is+an+interesting+appro....

It isn't a new one— it's the longstanding behavior with respect to information held in third party care.

Whats changing is how powerful a surveillance tool it is— especially with service providers intentionally blurring the boundary between local and cloud data for unrelated business reasons.

In 1787 there would have practically no reason for you to hand over your most personal papers and effects to a third party. Today its increasingly hard to avoid and can even happen without any real knowledge or consent.

The obvious fix isn't statutory: Keep your private data local, don't use software that will cloudify your data without your knowledge, and when you must use third party systems always use encryption. ... but this is complicated by the fact that there are multiple industries whos revenue is threaded by prudent behavior like this.

Hopefully they'll realize that taking the immunity only solves the lesser of the problems this presents and they'll provide the resources needed to create the legislative change to insure privacy for the data they hold in trust. But maybe it's just cheaper to convince everyone that they don't need any privacy?