Earlier quoted context omitted.
Yeah that's the immediate counter analogy to what I'm suggesting. I think the way I would go about arguing against it is that people on the street/sidewalk have no expectation of privacy. There are literally no access controls of any kind. Anyone can walk on the street; billionaires and homeless alike. There are no societal conventions that privacy is assured on the street and if you end up in someone else's picture…
I don't understand your argument. You seem to agree that the reason the unlocked house is not like the street is shared social conventions. That house across the street is definitely private property whether it's signed that way or not, and I'm expected to know that because, duh, it's a house. At least, that's how I understood this: > So the right of the owner of a house to control access to his house is fairly well…
In meatspace private property is default-closed (with certain exceptions) but some ability to in good faith. For example I can walk on your land to walk up to your front door and knock. You could then tell me I need to leave or you'll call the police. This is how it's worked for a long time and thus we think it's normal. You have this right even without building a fence around your property. Again, default-closed.
On the 'net the same rules of private property don't apply because the default on the 'net tends to be default-open. What I mean by this is that the simplest configuration for any webserver tends to have no access controls. So it'll serve up whatever it can to whoever asks. Furthermore the default on the internet for a long time was everyone can access everything since it was originally designed for precisely that purpose: sharing knowledge. The internet defaults to a street.
If you want to make your internet site NOT like a street (which is what it defaults to) you have to take steps to make that happen because HTTP doesn't have the mechanisms built in to do so. You have to build your access control on top of HTTP. If you do not, I would argue that we are right to assume that you meant for it to be a street for two reasons. First is that's how HTTP works and we've got some 20 years of history backing this up. Second is that to argue otherwise would place an incredible burden on everyone to have to divine the intent of the person/organization that served up the page.
What I'm getting at is to argue that weev "should have known better" strikes me as really nuts. In meatspace it would be like secretly passing a new law that divvied up all the roads to the landowners that border them so that I own the street in between my lot-lines and up to the middle of the road. Nobody knows about this so everyone keeps driving and nobody's the wiser. Then a real douchebag drives down the road in front of a rich guy's house. He hates it so he calls the cops and because he's rich and influential the DA manages to dig up this secret law and prosecute the douchebag with it.
If that law were to become non-secret and enforceable it would turn the world upside down in the US as nobody would be able to drive anywhere, walk anywhere, or generally do anything without the express permission of all the millions of people who now own the streets, sidewalks, etc. Even if you live in a big city and you could take the subway (which perhaps is still public) you wouldn't be able to walk to it unless the entrance happened to be on your land.
I think this would clearly be insanity as it would turn however many hundreds or thousands of years of convention on it's head. And to me, this is what the prosecutors are trying to argue. I understand that they probably don't really understand the technical aspects of it but to me it's really clear and their arguments sound like nonsense. But that's because we're looking at it from completely different viewpoints.