Monday, March 30, 2015

Of Drones, Phones and Privacy Zones

Back when I started in the privacy advocacy community -- about 20 years ago, at the ACLU -- we used to talk about the incredible shrinking Fourth Amendment.  It was a riff on the Lilly Tomlin movie – The Incredible Shrinking WomanIn the movie, Tomlin’s character shrank because she was exposed to an experimental perfume.  The question we face today is whether the zone of privacy protected by the Fourth Amendment will shrink on account of our use of technology.

On so many fronts, the scope of Fourth Amendment protection is becoming smaller and the exceptions to the warrant requirement that it imposes are becoming bigger.  For example, the administrative search doctrine – the doctrine pursuant to which passengers can be made to undergo a warrantless search in the airport before they board an airplane – extends to more and more contexts.  The automobile – what many people think of as their very own moving room – is not protected by the Fourth Amendment nearly as much as is a room in a home.  Even the scope of the exclusionary rule – the means by which the Fourth Amendment is enforced, has shrunk:  The police get a pass when they violate the Constitutional prohibition on searching and seizing so long as they violate the Constitution in good faith.  U.S. v. Leon (1984).  The privacy zones the Fourth Amendment protects have been shrinking, and the bite of the exclusionary rule is loosening.

As the digital age unfolds, civil libertarians are rightly concerned that this trend will continue, if not accelerate, for a variety of reasons: 

  • Data – ranging from email logs to tax returns – are stored increasingly by third parties, and under the business records doctrine, may not be subject to Fourth Amendment protection. 
  • More and more of the digital footprints people leave behind as they go through life is available to the government, and it is getting better at analyzing these bits of personal information to draw inferences, and the 4th Amendment has little to say about it.
  •  Law enforcement agencies can fly drones to look for criminals and evidence of crime, and in public spaces, the Fourth Amendment will likely be interpreted to permit such warrantless surveillance
  • Perhaps the primary means of communication in the digital age – the smart phone – is also a little tracking device revealing its user’s location from moment to moment.
  •  The airport searches that used to be conducted by means of a slightly intrusive search for metal objects by a magnetometer have grown into full blown electronic strip searches that reveal objects underneath a passenger’s clothing, with no warrant required.

Will the advance of technology inevitably shrink the zone privacy that the Fourth Amendment protects with the warrant requirement?  Is it destined to become just a speck of an island in a vast sea, with the ocean level constantly rising?

I think not, and for two reasons:  First, the Supreme Court has shown that it understands how technology impacts privacy and that it cannot simply apply rules born in the analog world to the digital world.  Second, the business interest in Fourth Amendment protections is rising. 

The Supreme Court showed its growing understanding of technology last year in Riley v. California, the case in which the Court used sweeping language in its unanimous decision that the police may not, without a warrant, search a cell phone incident to an arrest.  The Court recognized that modern technologies create new risks to privacy and embraced its constitutional role as guardian of Fourth Amendment rights.  It signaled its discomfort with the Justice Department’s argument that a search of data on a cell phone of a person under arrest is materially indistinguishable from the search of contents of an item found on an arrestee’s person:  “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.  Both are ways of getting from Point A to Point B, but little else justifies lumping them together.”  In other words, the Court found that when it comes to the scope of a search, size matters. 

Riley isn’t an outlier.  In 2012 in U.S. v. Jones the Court ruled that warrantless GPS tracking by means of affixing a device to a vehicle moving on open roads violated the Fourth Amendment.  And, in the 2001 case Kyllo v. U.S., the Court found that use of thermal imaging technology to explore activity in a private home that would be otherwise unknowable without a physical intrusion violates the Fourth Amendment.

As in Riley, the Court in both cases rejected the government’s arguments that searches of new technology or facilitated by new technology were permissible based on analogies drawn to other searches that did involve such technologies. 

Support for Fourth Amendment protections by major companies is also growing, and they are a powerful constituency in policy development and constitutional litigation.  In the context of email privacy, a growing number of tech and telecom companies are insisting that law enforcement obtain a warrant in order to access email content, citing not a Supreme Court case, but a circuit court case, U.S. v. Warshak.   And, they have joined a broad-based effort to change the law to require such warrants.  One tech company, Yahoo!, brought a constitutional challenge to surveillance conducted in the U.S. of non-US persons abroad, though threatened with a fine of $250,000/day if it did not comply with Government demands it believed unconstitutional.  In the wake of the Snowden revelations, many tech companies, after pledging that they would not voluntarily turn over user information in bulk to the National Security Agency, joined in efforts to reform government surveillance.  Two of those companies, Google and Apple, are defying government demands that they build in backdoors to their products and services to make them more wiretap ready.  As it turns out, privacy is good for business.

These two trends – growing industry support for privacy as against government intrusion and the Supreme Court’s concerns about the impact that technology can have on privacy – give rise to hope that the zone of privacy enjoying meaningful Fourth Amendment protection will not vanish and might even increase in the coming years.

Senior Counsel and Director
Freedom, Security, & Technology Project
Center for Democracy & Technology

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