The Fourth Amendment is being discussed in our next class, seems a simple topic to write about. As I am learning in the MLS program, nothing is simple about understanding the legal framework and protections of the U.S. Constitution. The Fourth Amendment is no exception.
FOURTH AMENDMENT
“The right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no warrants shall issue, but
upon probable cause, supported by Oath or Affirmation, and particularly
describing the place to be searched and the persons”
I have always thought that the Fourth Amendment only
protected my home from being illegally searched without a warrant.
When I think of information on my cellular phone, does the
government need a warrant to look at this data?
What was the intent and purpose of our founders
writing the Fourth Amendment? How does
the court look at defining whether there is a Constitutional violation of your
rights?
First, we need to understand Search and Seizure
are two different things:
Search
· -Authorities coming into your private residence,
self, or property looking for evidence
Seizure
· -When authorities take property from the search
or restrain/arrest a citizen
The definitions seem narrow, but they are not. In fact, when we talk about illegal search
and seizure it could relate to my vehicle, my person, my phone, my digital
footprint, etc.
To understand the Fourth Amendment further, we look to the
courts and how they interpret this protection.
Katz
v United States regarded the government listening to the conversation on a pay
phone with a door, without a warrant. Mr.
Katz was running an illegal gambling operation.
He stated his Fourth Amendment rights were violated. In this case, Justice John Marshall Harlan II
established two criteria questions as a test for a reasonable expectation of
privacy:
1. 1. Did the individual have a subjective/reasonable
expectation of privacy?
2. 2. Was the expectation of privacy one that society
would recognize as reasonable?
It was found that his Fourth Amendment rights were violated,
and the case was remanded by the U.S. Supreme Court.
These questions now became a judicial lens for all future Fourth
Amendment cases in the future.
Think about it, the founders had no idea what a public pay
phone was in 1791 or how it would relate to our protections today. However, the Fourth Amendment does apply, and
the courts are faced with interpreting the law in different contexts to apply
to unforeseen infringements on our rights.
We really could go down a rabbit hole with this topic
today. However, I only want to focus on information
on our cellular phones that would fall under the 3rd Party Doctrine
established by United
States v. Miller. Let's define:
Third-Party Doctrine
“Legal doctrine that holds that
people who voluntarily give information to third parties have no reasonable expectation
of privacy in that information”
In this case, the U.S. Supreme Court held that a warrant was not required for third-party information we have freely given.
I don’t know about you, but every application on my phone, website,
social media portal, and email hosting service requires me to read an exhaustive
contract that I must digitally sign. I
have no idea if I am agreeing for them to share all my data.
Is this information not protected by the Fourth Amendment? Well, that is the challenge faced by the courts
today. Data privacy is at the forefront
of State and Federal Legislation today due to the complexities of this issue.
Case law is being established such as Carpenter
v. United States in 2018. The Supreme
Court held in a five to four decision that the GPS location on your phone could
not be tracked without a warrant.
However, there was disagreement being that it’s third-party data. This was a big win for our rights to privacy,
but will it be addressed differently in the future?
What is being done today?
States are weighing in and creating privacy laws such as the California
Consumer Privacy Act (CCPA) which is the most expansive law I have found. In fact, only 4 States have weighed in on
this issue, California, Virginia, Colorado, and lucky for us, Utah.
Do you think your Fourth Amendment rights are not protected
with your cellular phone due to the third-party doctrine? Does this worry you or how do you see your use
of this device change in the future?
I didn’t talk about it on the blog, but I added an interesting
link regarding Snapchat, a gun, and your rights. Also, I did not broach Probable Cause, Exclusionary
Evidence, or other topics relating to the Fourth Amendment. I encourage you to do your own research. Thanks for reading my blog.
One of the most interesting stories I have read about data privacy and the 4th amendment (and pro se litigants) is partially explained in this article (https://www.politico.com/magazine/story/2018/06/03/cyrus-farivar-book-excerpt-stingray-218588/).
ReplyDeleteLaw enforcement is in a tough spot because cybercriminals are a huge problem. I worry more about criminals and companies failing to secure my data properly than law enforcement. I also have less empathy for individuals who willingly share all their most personal data with third-party providers.
However, law enforcement (of the government in general) still needs to respect citizen's constitutional rights. When they fail to do that, they risk undermining their efforts, which doesn't benefit society at all.
People also need to be educated on the risks of sharing their information online. I remember when the Dobbs' draft was leaked, several articles were published warning women of the potential risks of using certain health apps (https://www.npr.org/2022/05/10/1097482967/roe-v-wade-supreme-court-abortion-period-apps). Honestly, I had never given that topic any thought before reading those articles, and I found them concerning. I think we have a way to go before our laws are caught up with this new digital age.
Ryne, I think you hit it on the nose, the laws catching up to the digital age. Also, I really haven't thought about the real ramifications of companies failing to protect my data but you are correct and I've had more than my share of notices about a security breach. If someone got my financial information that could cause more problems than I can think about and I don't think that the system deals with the issues that someone attempting to reclaim their name go through.
DeleteI'm glad you mentioned the contracts we all sign when we join online services, because these are a hotbed of issues related to privacy. As you mentioned, we don't know what we are really signing unless we spend time (which most people don't have) to read the extensive document. I imagine a lot of disputes over these contracts end up with the consumer being told they're out of luck- they signed what they signed.
ReplyDeleteTo relate this back to the Fourth Amendment, I think these contracts and the third-party doctrine could become huge issues in the future. I think particularly about Google. We know that Google tracks and records our data, so could our entire online profile fall under the third-party doctrine because of the contract we signed? Could what someone searches be used in court against them?
As a sidebar- I highly recommend the Black Mirror episode "Joan is Awful" on Netflix if you're interested in these issues- it shows the potentially slippery slope these contracts create when it comes to consumer privacy.
DeleteTo answer your question about Google and search data the answer is YES they already have. It is circumstantial evidence but it is still admissible and can be obtained with a warrant. There was an article floating around a little while ago that looked into the tracking that Google does and there is a way to turn it off in your account and apply it to your phone but it has to be done manually.
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ReplyDeleteGood job on the blog post, Travis. I think this topic is just the tip of the iceberg of the ongoing issues of applying old precedents to modern challenges. US law is centuries behind the ever-evolving digital world we live in today. I think data privacy will continue to be a state issue to address. It's hard to foresee the federal government passing a comprehensive privacy law that meets the general public's need for vigorous privacy protection.
ReplyDeleteI completely agree with you Harley. I think legislation getting passed is only going to happen on the state level but really the sooner states can pass legislation addressing privacy protections the sooner we will see cases making their way through the courts and up to the U.S. Supreme Court to address.
DeleteI guess according to Supreme Court decisions reaching back to 1979, no, I can't expect my 4th amendment rights to be protected when sharing information with third parties. However as you mentioned, much has changed.
ReplyDeleteThere are a few concerning things. It is increasingly difficult to get by without smartphones and as we know, apps that keep track of your data, even if you do prefer to live more like Ron Swanson, are almost impossible to bypass.
Even so, most of us don't read the terms because we want the app enough and know that by not agreeing to the terms of the agreement we would forfeit having access to all the little luxuries we desire out of our smartphones.
I recognize this is an ongoing debate and we have not heard the end of it. It seems obvious to me, any information obtained that might be personal and not available for the public, MUST be obtained with a warrant and I would add it should be a specific request. Warrants should be requested for specific apps and only apply to what is specifically granted. For example, gps location, or for texts, or emails - not just for whatever is found on the phone, but rather specific applications where probable cause warrants the request.
Things like social media, should not be bound to warrants. Places where people knowingly publish public information to be accessed by anyone should not expect reasonable privacy.
Kara,
DeleteA search warrant issued to search a computer or electronic device can only be done if there is probable cause to believe that the media contains or is contraband, evidence of a crime, fruits of crime, or an instrumentality of a crime. see Federal Rules of Criminal Procedure, Rule 41(c).
As with any search warrant it cannot just be a broad search, there must be probable cause to believe that evidence of "X" is located on "X" device. For example: Let's say that a suspect is accused of poisoning the victim that was murdered with antifreeze. The police obtain a warrant based on the probable cause that traces of antifreeze were found in the home that is shared by the suspect and victim and where the victim was found. They seize the computer located in the home in which they listed in the search warrant to look for searches on poisoning/antifreeze/ways to poison and so on. The Computer Crimes division would do a general search of the computer using key phrases or words that were specifically listed in the warrant.
In other words, they cannot download all the contents of your phone UNLESS YOU GIVE THEM PERMISSION TO DO SO. That is why you always make them get a search warrant.
Appreciate the thoughtful post.
ReplyDeleteTo touch on some of the writing I've been doing (for class, actual academic publication, and industry standard development), we are going to see a significant challenge to our 4th Amendment rights in the not-to-distant future. After all, the majority of the developers out there today are not the direct providers of their own AI systems. That is why the White House finally got an Executive Order out (https://www.whitehouse.gov/briefing-room/presidential-actions/2023/10/30/executive-order-on-the-safe-secure-and-trustworthy-development-and-use-of-artificial-intelligence/). And given the work my colleagues are doing on IEEE 3119 (Standard for the Procurement of Artificial Intelligence and Automated Decision Systems), we're likely to see a drastic shift in the Court's determination of what constitutes as a "reasonable expectation of privacy". Would also point you to this article for some of the pitches being made for ethical AI standards via the IEEE SA (https://standards.ieee.org/beyond-standards/industry/technology-industry/evolving-procurement-for-artificial-intelligence-systems-in-cities-and-beyond/).
As you noted, there are so many ways that app developers can embed third-party services without our full acceptance that those services are in use. The world's already seeing one of the biggest experiments in this area come from the EU's General Data Protection Regulation (GDPR)--which has been in force since May of 2018 (see this article for actions on the "wrong" way to use third-party data sharing: https://gdpr.eu/data-sharing-bounty-fine/). The intent of GDPR was to do away with the gigantic EULAs that effectually hid provisions regarding third-party data sharing--which is why practically every website gives you that window to manage how your data is used. And for those who haven't been to Europe since GDPR was implemented, the version we have in the USA is "cute" compared to what's given to you in England and the rest of the EEA.
All that aside, it is still incredibly difficult to balance the need for "convenient" technology (as driven by AI) and the need to ensure that these services don't infringe upon our basic 4th Amendment rights. Many in industry have argued (and continue to argue) that you cannot have AI without doing away with the notion of individual privacy--particularly systems that are self-learning, or that exhibit "human-likeness" that would allow them to supplant human workers performing "menial" day-to-day operations. At present, I'm more interested to see the pathway that society and regulators take for these systems--as I'm all for ensuring that those wishing to engage in policing activities (whether they be authorized by the state or vigilantes) are forced to get a court order before being allowed to "search and seize" our digital information and any device (whether we own it or not) that might contain it.
Marco!...............
ReplyDeleteA phone's GPS should require a warrant.
If an individual has a location sharing app, does not set their account to private, or adjust their settings in anyway to not share their location, then that's fair game. Someone forgets to silence their phone, it rings, and everyone else hears it. They did not want everyone else to hear it. It's their own fault for not silencing their phone.
Interesting topic! One that I admit I don't know a lot about. But, I am not surprised that the Supreme Court ruled that we have no expectation of privacy when we agree to them collecting our data. I agree with Justin that if you accept terms and use the service then you are accepting the collection of your data, whether you like it or not. I also agree with Kara that, unfortunately, we live in a world where it would be almost impossible to not engage with these types of apps or systems that collect our data.
ReplyDeleteGreat job! I like how you laid out the topic and the ideas to think about. I do have a fear in the back of my mind when I agree to those long, multi-page, complicated agreements we're required to sign in order to use the apps. I also have the same hesitation when I have to agree to "cookies."
ReplyDeleteI'm not sure our laws adequately keep up with technology or how that should be adjusted. I'm not sure it even can.
Often, the focus put in front of us is usually about efficiency and how agreeing to these things help us to have a "better experience." But I wonder what loopholes we sign up for when we don't read everything. Ultimately, like so many things, we become "the product" and being able to track what we do means dollars. Our vulnerability is also be packaged into that and some entities that profit off of that will want to protect that ability to data mine.
https://br.ifunny.co/picture/people-in-the-1960s-i-better-watch-what-i-say-bNijHVdY9?s=cl
I often hear jokes about "stalking" or someone "listening in" on a phone, but
I tried to add a funny meme and it somehow put a link in the middle of a sentence...with not photo....and I don't see how to edit! Please ignore my tech challenges.
Deletehttps://br.ifunny.co/picture/people-in-the-1960s-i-better-watch-what-i-say-bNijHVdY9
DeleteI don't even dare replying to any of your posts Nikki. You are all over this, thanks!
ReplyDeleteThanks to everyone who posted on my blog.
ReplyDeleteTravis, this was a great post! Thank you for covering this topic before our next class. I often think about all those agreements I scroll through as fast as possible and click “I agree”. I have no idea what I agree to, how it can be used, and how that can affect my Fourth Amendment rights in the future. It is worrisome to think about how much data our phones collect and how that might be used in the future. If we agree to everything left and right without giving it a second thought, I do think this falls under the Third-Party Doctrine. When using a phone and interacting with websites with and apps, I don’t think anyone can truly have a reasonable expectation of privacy.
ReplyDeleteI first heard about the 4th amendment's applicability to tech when the NSA started listening to us under the Patriot Act. Then everyone started putting tape over their webcams and game consoles about a decade ago. Now laptops come with sliding covers to block the view. Even though laptop webcams have never been used in a 4th Amendment violation (so I believe), it brought the discussion up a lot. A common snarky response has always been "if the government wants to see me walk around naked, that's on them. But I have nothing to hide..." which may be true, and funny... but the enable an entity to access your privacy is to encourage it, and if it is encouraged enough, it would have very real negative consequences.
ReplyDeleteThe Fourth Amendment rights are not protected with the use of cellular due to third-party doctrine, a vast amount of personal data found in these devices such as call logs, messages, and location are at risk. The third-party doctrine claims that, once this information is shared voluntarily with a third party, it is not subject to constitutional protection. Thus, this act of sharing data and other personal information with third-party companies will erode an individual's claim for privacy. With this in mind, the 4th Amendment protects the search of cell phones but does not protect the seizure of the cell phone. Public sensitization drive must be conducted on the use of cellular phones with key emphasis being on data-sharing practices and privacy-enhancing measures.
ReplyDeleteI am little bit concerned about my privacy and my Fourth Amendment rights. In the future, I will seek to protect my data more and find better ways of enhancing my privacy. I will try incorporate other data encrypting technologies to protect my data while also being mindful of the information that I will choose to share online
I hate signing those service agreements. I feel the conspiracy theorist hairs on the back of my neck stick up. I might need to revisit my search history on my phone as I researched 2 amendment and Militia information for Olsen's paper... I feel the boys from Langley and Ft. Meade knocking on my door. I think Naomi made a great observation about data encrypting technologies and services. There are more and more advertisements for VPNs now. The question is, will those services fail in the face of the law as well? Will prosecution be able to pierce VPN veils through subpoena and court order?
ReplyDelete