
Court says tracking web histories can violate Wiretap Act - Oatseller
http://www.wired.com/2015/11/court-says-tracking-web-histories-can-violate-wiretap-act/
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rm_-rf_slash
The original intent of the Wiretap Act was to place a distinction between
content and metadata.

The problem now is that there is JUST SO MUCH metadata that it is losing that
distinction. If someone calls a known pot dealer once a week, then it doesn't
matter whether you hear the call or not, you can still infer that the caller
picks up every week.

A DOJ lawyer once said to me that "when survellience is ubiquitous, the role
of law enforcement becomes the role of a prison warden, where everyone is an
infraction waiting to happen."

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hellbanner
Yeah. Some anonymous web poster pointed out to me that changes in the law
regarding marijuana & homosexuality would have been _impossible_ with perfect
surveillance.

Advancement in the social code is only possible because people can get away
with violating it.

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cortesoft
I think this is a really good point - if we can never break a law, we can
never change one.

There is another good point as we move towards more perfect surveillance and
enforcement of laws; so many of our laws are designed with the idea that you
will only catch x% of infractions. If we knew we would catch 100% of the
violators when we created these laws, we might have chose different thresholds
and punishments.

For example, take speeding - if we knew that we would catch 100% of people
driving faster than the speed limit, we might set a higher speed limit and a
lower penalty. We set the current penalty based on the idea that it needs to
be high enough to offset all the times that we speed and don't get caught. For
example, if we get caught 1% of the time we speed, then we can expect a $500
fine for speeding to cost us about 5 dollars per time we speed. If we are
caught 100% of the time, that jumps to $500 per time we speed.

Also, the speed limit is lower because we can't enforce it perfectly - we need
a little bit of a buffer, so that a cop can be sure the person is speeding
before issuing a ticket. This means speeds are lower than they should be with
perfect enforcement.

We really need an overhaul of our laws if we are going to allow automated and
perfect enforcement.

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yuhong
It also reminds me of incidents like
[http://slashdot.org/comments.pl?sid=3106555&cid=41288357](http://slashdot.org/comments.pl?sid=3106555&cid=41288357)

In fact, one of the reason I dislike anti-discrimination laws are because
enforcement using things like statistical analysis was really only designed
for unskilled labor and the like.

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throwaway2048
Frankly results like this are inevitable from either the courts, or congress
if advertisement companies continue to refuse to self regulate in a reasonable
way.

The only reason its not a bigger issue right now isn't because "nobody cares,
privacy is dead!". It's because people for the most part do not understand the
mechanism.

Explain exactly how ads track you to common people, just how many do you
suppose will approve and be comfortable with the arrangement?

The entire industry is built on sand.

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DannyBee
The headline is in theory true, in practice not.

"In their ruling, the panel of three appellate judges found that Google and
its co-defendants hadn’t violated the Wiretap Act because they were a “party”
to the communications rather than a third-party eavesdropper—"

This is consistent with the ruling, but buries the part that is important for
most folks:
[http://www2.ca3.uscourts.gov/opinarch/134300p.pdf](http://www2.ca3.uscourts.gov/opinarch/134300p.pdf)
(page 35).

Because they were the intended party of the communication, they will never be
liable under the wiretap act. _Ever_.

So yeah, if some third party you aren't communicating with grabs your cookies
(cough cough), that may be an issue.

Otherwise, no.

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irishcoffee
Does this mean the facebook like button slathered all over the web is now
illegal?

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DannyBee
No. Because, as the ruling says, they are an intended party of the
communication.

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e12e
Does anyone have a summary of the actual case? Because, according to the
article: "(...) Google and its co-defendants hadn’t violated the Wiretap Act
because they were a “party” to the communications rather than a third-party
eavesdropper—the users were visiting their websites when the cookies were
installed."

So it's rather unclear if they're saying that if you go to eg:
plus.google.com, google is party to the communication, or if they're saying
that if you go to example.com, and example.com has installed google's
analytics tracking, then google is _also_ "party to the communication"?

The latter might make sense from the perspective that any party to an
organization could invite any other party to secretly record it? (Eg: You
might be on the phone with a person, and without telling that person, invite
your lawyer to listen in on the call. As the person you're talking to doesn't
have any expectation of privacy from _you_ AFAIK that'd be legal (in many
jurisdictions, anyway)).

So, it would seem that tracking someone visiting example.com via cookies at a
third-party site, might be legal wrt. wire-tapping, but may violate
requirements to alert the user of tracking/cookie use?

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module17
Analytics. Illegal!

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detaro
Uhm, nope. Just not "legal because it just grabs URLs", but for other
reasons..

