He married, had children and learned to live with his unease. Then, four years ago, after separating from his wife, he asked a new partner how he measured up to her ex-husband. “It was a stupid question,” Alistair admits. “It’s pathetic that I cared at my age – but I did. To start with she told me it was fine, but I kept pushing and, eventually, she just told me: his was bigger.”
"Prospective" surveillance is generally covered by a different law, the Wiretap Act, and by the much more stringent requirement to obtain a "probable cause" warrant first. Orin Kerr, a leading Internet privacy scholar, notes that "prospective surveillance tends to raise difficult questions of how the communications should be filtered down to the evidence the government seeks" and that "retrospective surveillance usually presents a less severe filtering challenge."
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This led to short-terms gains but long-term problems. Angry customers, unable to get satisfaction from Berkeley, went to their credit card companies instead. Berkeley's "chargeback" ratio went through the roof as customers disputed charges and banks took money back from Berkeley, putting the company's very ability to accept credit cards in jeopardy. (Payment processors would have cut off Berkeley if more than one percent of its transactions were chargebacks).
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The government had an argument to defend this position, the so-called "third-party doctrine." Once the target of surveillance had voluntarily revealed information to someone else, the idea went, it was no longer quite so private and so could be obtained from that third party with a mere subpoena, which didn't require the high "probable cause" standard of evidence. This doctrine explained why remotely stored e-mail was so easy to access under the SCA, despite the fact that no one "reveals" the contents of their e-mail to their e-mail provider in the same way they might show a letter to a friend. Not surprisingly, the third party doctrine has been roundly criticized.
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