I agree the jurisprudence is a problem here. But the issue comes from challenges in the 1970's to the Banking Secrecy Act where the court ruled that financial records in a bank were not protected by the 4th Amendment. In theory there isn't a close reason to see messages on a web server as being protected by the 4th Amendment if we accept that logic because they are stored in the commercial sphere, just like banking records, what cold medicine you buy, etc. Of course this is exactly why William O Douglass dissented....
For this reason the argument is that if is on a server outside your control, it is protected by statute at most and not by the 4th Amendment. The 4th Amendment then only protects what is on *your* computers and what is in transit. I believe this is wrong, but it is the law today:-(
The issue here has to do with various European treaties and the so-called "personality rights." the mall doesn't want to be sued, so they have this policy. Since it is private property, they can make threats like that.
I think they can only do an inventory search there. Not sure if they can search the contents of the disk drive of the laptop for pornography. They might argue it's just an inventory search, but given recent Supreme Court jurisprudence (Arizona v. Gant), it isn't clear to me that digital contents of a hard drive of nvram arrangement could be searched under these exceptions.
You can always consent to a search and waive your 4th Amendment rights. If police come to your door and say "we'd like to search your house for drugs" you can always say "come on in!" And if you do, and they find something illegal, you have already given them permission for a search far in excess of what they would have gotten on a warrant....
Well, given that the American Jobs Act (Obama's jobs bill) auctions off government-owned RF spectra reserved for emergency services, I am betting for auctioning off mining rights to our national parks.......
No. Require a warrant unless the search incident arrest exception is properly at issue. BTW, if you throw your phone into the back seat out of arms reach when the officer pulls you over, then it can't be searched incident arrest.....
As I understand it from reading Prof. Orin Kerr's blogs and law review articles, this is a developing area of Constitutional law. Searches incident arrest are not intended to be something that allows an officer to search all locked containers within arms reach of the suspect when he is arrested, as I understand it. So the question really comes down to what category a phone falls into. And not all phones may be created equal. It may be that smart phones are entitled to more protection than low-end cell phones. But as the US Supreme Court has not been clear on this yet, it's up to the state and circuit courts to try to sort this issue out.
So in the end, the veto may or may not amount to anything.
The danger is there not just regarding open source though. Think of the dangers it poses for data ownership for businesses. I am a firm believer that businesses should not store their data in a cloud, unless it is one they have direct back-end access to (like a virtual private server or something), and even then they should be taking frequent backups and bringing those off the cloud.
The fact is, critical data needs to be owned by the company that is using it, and it needs to reside (at least in backup form, if not in fully managed form) inside the company's infrastructure.
They'd still need a warrant, which means a lot more than telling a judge they think there is probable evidence that is somehow relevant to a case in order to get a subpoena.
Well, here's how things work with the (BSD-licensed) PostgreSQL community:
Lots of people develop and share code. Some companies release proprietary, closed source versions. For example, EnterpriseDB offers Oracle compatibility above what the community wants, and therefore finds a niche market in those who are migrating from Oracle. Green Plum offers a parallel-based BI version. However on the whole these companies contribute back everything the community would actually accept or want in order to minimize the headaches of maintaining it themselves.
So when we talk about adapting open source, that's the model that comes to mind: sharing everything one can to reduce costs of code maintenance, while keeping whatever the community doesn't want as part of the company's own product offerings.
On the whole I agree with Ramji here though. I think that the development of cloud computing in many areas (though not applicable everywhere of course) will force many companies who are sitting on the fence to adopt open source both for reasons of up front cost, and also for reasons of participation in the community. This trend will furthermore move up the stack until all that is held as proprietary (even in BSD-licensed projects) will be a few enhancements tailored to the niche of the specific cloud provider. This is already to be seen in BSD-licensed projects like Apache and PostgreSQL, and it is almost certain to occur with GPL-licensed (not AGPL licensed though) as well.
The fact is that although from a user, access to the source is not necessarily provided with cloud computing, as a provider, it is absolutely necessary.
If you delete your emails, at least, then I would think that there might be stronger 4th Amendment grounds to challenge government possession of said emails via a subpoena. IANAL though.
As I understand it, the 4th Amendment is generally extended to cover contents of communications, meaning a warrant is supposed to be required for such contents. However, as I understand it, the current laws make a difference between recent communications and less recent ones, meaning that old emails can be obtained at a lower burden (and via a subpoena) while newer emails may require a warrant.
Note that all that is required for a subpeona is for the DoJ to say they think there is content in the emails which probably relates to an on-going criminal investigation..... So historical data is up for grabs just because someone thinks it might be relevant.......
Note that these apply only to communications hosted on third parties. It seems to me prudent to actually download all your communictions and stop relying on either IMAP or webmail interfaces, so that the contents can no longer be subject to subpeona.
Linux really has catching up to do, still, and always. It's pretty obvious to one that isn't completely oblivious to the last fifteen years of OS evolution outside Linux. It has reached the "good enough, cheap, unix-like server OS" goalpost and stood still for lack of leadership or vision.
I disagree. Linux only has "catching up to do" if you want a drop-in replacement for Windows. Linux is a better desktop for many business networks than Windows is. The problem here is that the expertise in HOW to set up and admin efficient Linux desktops is not at the same level yet.
This reminds me of the recent story of executing a vulture for suspicious activity (hanging around the desert) and claiming it was an Israeli spy in training. Now with news that real mice are being trained for detecting explosives, I have to wonder how much mass hysteria we will see in the Middle East.....
Well, "fixing it" is way more broad than bug fixes. It includes product support among other things. Someone who knows how to leverage community resources, when to pay someone who knows more, etc. is worth a great deal.
Ideally the "fix it" firm coordinates/does/pays for bug fixes, but also is generally responsible for it working well (this means general support etc).
Moreover, every single one of the quotes here discusses a legitimate pitfall in the migration process, but every one of them is avoidable.
Well, Microsoft owes its success to helping (along with Compaq and Phoenix) break the vertical integration of the computer business and allow an economy of scale to develop which allowed them to sell way below their competitors. That's a wonderful thing! They then were able to further decentralize the industry.
The thing is that if this is what Microsoft does well, this is also something FOSS does even better.
Whether or not this is obvious, there's an interesting point here. This ad will be circulated far wider than its original target market. This suggests that this will help Open Source here in the US.
Indeed, one of the key uses I have for this sort of thing is SELLING FOSS. My approach is to look at this carefully and determine how one can use it. While this is less useful than the old Get the Facts campaign, it does provide some fodder for FOSS consultants. First, the fact that Microsoft is attacking it is significant. Secondly, the problems discussed are real ones for some customers. Understanding the problems and how to avoid them is key to make a migration work. Saying "don't let this happen to you. Use MY services!" is a very powerful thing.
Moreover it addresses a number of issues, including "who will fix it?" ("I will if you pay me to!")
Though, I suppose you could simply make the Ethernet port an autodetect. If it doesn't see a simple DHCP network on the port, it hosts a 192.168.1.x LAN on that port so you can plug a computer into it and configure it that way.
Which would work great as long as you are not using consumer DHCP servers, in which case something like nmap is required to find the darned box after it grabs an IP address....
Is that while tracking a car on the public roadway doesn't require a warrant, searching a car requires at least probable cause (i.e. the standard is "they could have gotten a warrant if they had applied for one"). The reasoning (from US v. Carroll) was that police (at least in 1924) wouldn't be able to leave the scene, apply for a warrant, and come back without the scene possibly being tampered with.
Consequently you have a problem. While it poses no Constitutional problems to put one of these things on the outside of the car (as per US v. Knotts), it is something very different to open up any part of the car to do so. That puts you in search territory, and consequently you had better be able to defend your decision in front of a court if you decide to do so. Hence most of these are simply attached to the undercarriage where it doesn't constitute a "search" to install or retrieve.
Moreover (as per US v. Karo) if the car is tracked into a closed structure, then a warrant might be required to retrieve the GPS data (Prof. Orin Kerr suggests the solution is to have the tracking units filter out locations not on public roadways, i.e. have the unit decide "I'm not on the road right now, stop tracking").
This is a complex and evolving area of law right now. There are a lot of interesting decisions coming out of courts in the area. Predicting the end of the 4th Amendment is way too premature at this point.
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I agree the jurisprudence is a problem here. But the issue comes from challenges in the 1970's to the Banking Secrecy Act where the court ruled that financial records in a bank were not protected by the 4th Amendment. In theory there isn't a close reason to see messages on a web server as being protected by the 4th Amendment if we accept that logic because they are stored in the commercial sphere, just like banking records, what cold medicine you buy, etc. Of course this is exactly why William O Douglass dissented....
For this reason the argument is that if is on a server outside your control, it is protected by statute at most and not by the 4th Amendment. The 4th Amendment then only protects what is on *your* computers and what is in transit. I believe this is wrong, but it is the law today :-(
The issue here has to do with various European treaties and the so-called "personality rights." the mall doesn't want to be sued, so they have this policy. Since it is private property, they can make threats like that.
I don't know about confiscating the phone though.
I think they can only do an inventory search there. Not sure if they can search the contents of the disk drive of the laptop for pornography. They might argue it's just an inventory search, but given recent Supreme Court jurisprudence (Arizona v. Gant), it isn't clear to me that digital contents of a hard drive of nvram arrangement could be searched under these exceptions.
Define "impunity."
You can always consent to a search and waive your 4th Amendment rights. If police come to your door and say "we'd like to search your house for drugs" you can always say "come on in!" And if you do, and they find something illegal, you have already given them permission for a search far in excess of what they would have gotten on a warrant....
Well, given that the American Jobs Act (Obama's jobs bill) auctions off government-owned RF spectra reserved for emergency services, I am betting for auctioning off mining rights to our national parks.......
No. Require a warrant unless the search incident arrest exception is properly at issue. BTW, if you throw your phone into the back seat out of arms reach when the officer pulls you over, then it can't be searched incident arrest.....
As I understand it from reading Prof. Orin Kerr's blogs and law review articles, this is a developing area of Constitutional law. Searches incident arrest are not intended to be something that allows an officer to search all locked containers within arms reach of the suspect when he is arrested, as I understand it. So the question really comes down to what category a phone falls into. And not all phones may be created equal. It may be that smart phones are entitled to more protection than low-end cell phones. But as the US Supreme Court has not been clear on this yet, it's up to the state and circuit courts to try to sort this issue out.
So in the end, the veto may or may not amount to anything.
The danger is there not just regarding open source though. Think of the dangers it poses for data ownership for businesses. I am a firm believer that businesses should not store their data in a cloud, unless it is one they have direct back-end access to (like a virtual private server or something), and even then they should be taking frequent backups and bringing those off the cloud.
The fact is, critical data needs to be owned by the company that is using it, and it needs to reside (at least in backup form, if not in fully managed form) inside the company's infrastructure.
Umm.... the law in question was signed by none other than Ronald Reagan. It's the Stored Communications Act, signed in 1986.....
They'd still need a warrant, which means a lot more than telling a judge they think there is probable evidence that is somehow relevant to a case in order to get a subpoena.
Well, here's how things work with the (BSD-licensed) PostgreSQL community:
Lots of people develop and share code. Some companies release proprietary, closed source versions. For example, EnterpriseDB offers Oracle compatibility above what the community wants, and therefore finds a niche market in those who are migrating from Oracle. Green Plum offers a parallel-based BI version. However on the whole these companies contribute back everything the community would actually accept or want in order to minimize the headaches of maintaining it themselves.
So when we talk about adapting open source, that's the model that comes to mind: sharing everything one can to reduce costs of code maintenance, while keeping whatever the community doesn't want as part of the company's own product offerings.
Also not present in the article.
On the whole I agree with Ramji here though. I think that the development of cloud computing in many areas (though not applicable everywhere of course) will force many companies who are sitting on the fence to adopt open source both for reasons of up front cost, and also for reasons of participation in the community. This trend will furthermore move up the stack until all that is held as proprietary (even in BSD-licensed projects) will be a few enhancements tailored to the niche of the specific cloud provider. This is already to be seen in BSD-licensed projects like Apache and PostgreSQL, and it is almost certain to occur with GPL-licensed (not AGPL licensed though) as well.
The fact is that although from a user, access to the source is not necessarily provided with cloud computing, as a provider, it is absolutely necessary.
The PATRIOT act doesn't supercede the bill of rights.
Besides the problem here is not the USAPATRIOT act, but rather the Stored Communications Act.
If you delete your emails, at least, then I would think that there might be stronger 4th Amendment grounds to challenge government possession of said emails via a subpoena. IANAL though.
As I understand it, the 4th Amendment is generally extended to cover contents of communications, meaning a warrant is supposed to be required for such contents. However, as I understand it, the current laws make a difference between recent communications and less recent ones, meaning that old emails can be obtained at a lower burden (and via a subpoena) while newer emails may require a warrant.
Note that all that is required for a subpeona is for the DoJ to say they think there is content in the emails which probably relates to an on-going criminal investigation..... So historical data is up for grabs just because someone thinks it might be relevant.......
Note that these apply only to communications hosted on third parties. It seems to me prudent to actually download all your communictions and stop relying on either IMAP or webmail interfaces, so that the contents can no longer be subject to subpeona.
I disagree. Linux only has "catching up to do" if you want a drop-in replacement for Windows. Linux is a better desktop for many business networks than Windows is. The problem here is that the expertise in HOW to set up and admin efficient Linux desktops is not at the same level yet.
wget? I use punchcards and parse the hex LED displays with my eyes.
Get off my lawn and go play with your new C64.....
This reminds me of the recent story of executing a vulture for suspicious activity (hanging around the desert) and claiming it was an Israeli spy in training. Now with news that real mice are being trained for detecting explosives, I have to wonder how much mass hysteria we will see in the Middle East.....
Well, "fixing it" is way more broad than bug fixes. It includes product support among other things. Someone who knows how to leverage community resources, when to pay someone who knows more, etc. is worth a great deal.
Ideally the "fix it" firm coordinates/does/pays for bug fixes, but also is generally responsible for it working well (this means general support etc).
Moreover, every single one of the quotes here discusses a legitimate pitfall in the migration process, but every one of them is avoidable.
Well, Microsoft owes its success to helping (along with Compaq and Phoenix) break the vertical integration of the computer business and allow an economy of scale to develop which allowed them to sell way below their competitors. That's a wonderful thing! They then were able to further decentralize the industry.
The thing is that if this is what Microsoft does well, this is also something FOSS does even better.
Whether or not this is obvious, there's an interesting point here. This ad will be circulated far wider than its original target market. This suggests that this will help Open Source here in the US.
Indeed, one of the key uses I have for this sort of thing is SELLING FOSS. My approach is to look at this carefully and determine how one can use it. While this is less useful than the old Get the Facts campaign, it does provide some fodder for FOSS consultants. First, the fact that Microsoft is attacking it is significant. Secondly, the problems discussed are real ones for some customers. Understanding the problems and how to avoid them is key to make a migration work. Saying "don't let this happen to you. Use MY services!" is a very powerful thing.
Moreover it addresses a number of issues, including "who will fix it?" ("I will if you pay me to!")
Which would work great as long as you are not using consumer DHCP servers, in which case something like nmap is required to find the darned box after it grabs an IP address....
How do you think wireless access points should be configured?
Is that while tracking a car on the public roadway doesn't require a warrant, searching a car requires at least probable cause (i.e. the standard is "they could have gotten a warrant if they had applied for one"). The reasoning (from US v. Carroll) was that police (at least in 1924) wouldn't be able to leave the scene, apply for a warrant, and come back without the scene possibly being tampered with.
Consequently you have a problem. While it poses no Constitutional problems to put one of these things on the outside of the car (as per US v. Knotts), it is something very different to open up any part of the car to do so. That puts you in search territory, and consequently you had better be able to defend your decision in front of a court if you decide to do so. Hence most of these are simply attached to the undercarriage where it doesn't constitute a "search" to install or retrieve.
Moreover (as per US v. Karo) if the car is tracked into a closed structure, then a warrant might be required to retrieve the GPS data (Prof. Orin Kerr suggests the solution is to have the tracking units filter out locations not on public roadways, i.e. have the unit decide "I'm not on the road right now, stop tracking").
This is a complex and evolving area of law right now. There are a lot of interesting decisions coming out of courts in the area. Predicting the end of the 4th Amendment is way too premature at this point.
So consequently most of these things get put