This is productive discussion for addressing what's happening now and coming up in the race between law and technology, cartoonishly in the press as between whales and germs, more realisticly, the two swapping places, running different races, taking short-cuts, indicting, pleading, inforning, lying, bribing, cheating, rigging races, hiring assassins and stand-ins, dual hats, wild cards, lone wolves, entrapment, duplicity, megadeath threats, hacks, injections, implantations, porous treaties, incessant violations, and above all evergrowing heaping piles of dung of the devil. Concentration of wealth by lawful cheating is comparable to explosively squeezing the pit to see if the atmosphere ignites. At 03:19 PM 7/11/2015, you wrote:

On 10 July 2015 at 10:58, <dan@geer.org> wrote:

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Well, now we are into dueling Supreme Court cases; see

http://caselaw.findlaw.com/us-supreme-court/533/27.html

Kyllo v. United States (2001)

Despite the Court's attempt to draw a line that is "not only firm but also bright," ante, at 12, the contours of its new rule are uncertain because its protection apparently dissipates as soon as the relevant technology is "in general public use," ante, at 6-7. Yet how much use is general public use is not even hinted at by the Court's opinion, which makes the somewhat doubtful assumption that the thermal imager used in this case does not satisfy that criterion. In any event, putting aside its lack of clarity, this criterion is somewhat perverse because it seems likely that the threat to privacy will grow, rather than recede, as the use of intrusive equipment becomes more readily available.

Yes! That's the case I was obliquely referring to. Sorry, I kind of glazed over that part of your argument in the article.

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That reads, to me, that what the public adopts limits what I can do or expect.

I guess where we quibble is I'm skeptical that the general public (as defined by the courts?) will (ever?) adopt the types of tools you refer to (uniquely identifying individuals based on electromagnetics, tracking tire pressure sensors.) I don't think the 'general public' has adopted thermal imagers. These will make their way into industry... (advertisers tracking WiFi probes in malls obviously).

So my wonder now is if industry adopting a technology is sufficient for the courts to qualify as 'general public'. But this, at best, only affects exotic technology. We're already fighting this battle.

Automated license plate readers have never (?) been challenged (successfully?). They are an extension of "a police officer just watching a highway" which is legal. And the courts like extensions of things that are already done - see bulk collection of metadata!

You're right - collection of this data by personals or corporations, and selling it, is indeed the right battleground. I'm don't think the answer is correlation, but the collection, as you say in the last paragraph.

-tom