by Spencer Guier

An individual’s right to privacy has long been a contentious topic of debate among civilized societies, even more so with recent advancements in communication technology. The digital age has connected the world like never before through the most advanced network of interconnected devices ever assembled. Whether its social media, advanced cloud computing, or a simple text message, society has been quick to adopt the latest in telecommunication technology without so much as a second thought in pursuit of a world more cohesive and connected.

While these services have proven very successful in this regard, the billions of users who use these services daily may not be aware of the extent as to which the digital media produced by such interactions is recorded, analyzed, and monetized by various parties including: corporations, governmental bodies, and others attempting to capitalize on this freely available flow of information.

In 2012, the Obama administration announced the Big Data Research and Development Initiative(1), which was designed to explore how big data could be used to address the problems faced by the government. This announcement is only one example of the government’s recent interest in taking advantage of the plethora of information supplied by the regular interaction of the public with various forms of digital media.

While an individual’s right to privacy isn’t explicitly addressed in the U.S. Constitution or the Bill of Rights, in a landmark ruling during the case of Griswold v. Connecticut(2), the U.S. Supreme Court found that the Constitution implicitly grants a right to privacy against governmental intrusion, but is this right to privacy considered a basic human right? Is it a right that should be inalienable, serving to protect individuals by restraining both government and commercial party actions that can threaten the privacy of individuals? The Bill of Rights was established to protect the rights of the individual from government tyranny, but could it also be applied in the digital realm?

Before the advent of modern communication technology, it was a much more strait forward process for the courts to determine if a governmental investigation constituted a legal Fourth Amendment search. If the governmental authorities proceed to intrude on tangible interests listed in the Fourth Amendment, such as your house, papers, effects, or person, the courts were quick to identify it as a reasonable search when accompanied with probable cause.

However, with the recent proliferation of intangible forms of communication, including the telephone and the internet, the courts have been put in the difficult position of determining when certain governmental surveillance practices involving these forms of digital media are intruding upon our rights as defined in the U.S. Constitution.

In the case of United States v. Jones(3) the U.S. Supreme Court seems to rule in favor of individual privacy. The defendant, Antoine Jones, was suspected of drug trafficking. Police investigators pursued and received a warrant to attach a GPS tracking device to the underside of the defendant’s car only to later go on to exceed the warrant’s scope in both length of time and geography. The U.S. Supreme Court upheld a lower court ruling that installing a Global Positioning System (GPS) tracking device on a vehicle and using the device to monitor the vehicle’s movements constitutes a search under the Fourth Amendment.

In a Washington Post article titled Supreme Court limits police use of GPS tracking(4), the author, Robert Barnes, discusses the case, pointing it out as one of the first tests of our privacy in the digital age. Barnes says, “The court rejected the government’s view that long-term surveillance of a suspect by GPS tracking is no different than traditional, low-tech forms of monitoring.”

Barnes then goes on to say, “Walter Dellinger, who helped represent Jones at the Supreme Court, said the decision means that any use of GPS technology by law enforcement without a warrant would be a risky undertaking.” While this action seeks to limit the police in their ability to gather information through enforced court orders, investigative agencies are turning to a more freely available source of intelligence that some would consider voluntary.

With the recent advent of smart phones, personal computers, and social media, sharing private information about your daily lives has become common place, and these services are used without much thought. One may not stop to consider that behind these attractive interfaces lays a complex data collection network that seeks to learn as much as it can about one’s self in order to personally tailor the delivery of their services. While commercial interests seek to monetize the vast amounts of data it collects on its users, the government also attempts gain insights from this data by covertly tapping into that flow of information under the pretext of fighting crime and terrorism.

After the concern caused by the terrorist attacks on September 11th, 2001, Congress passed new legislation to strengthen security controls. This legislation, known as the USA PATRIOT Act(5), was signed into law by President George W. Bush on October 26, 2001. This legislation brought sweeping changes to the capabilities of the government to monitor both foreign and domestic targets alike. With this new legislation came an increased capacity for the government to monitor all forms of digital communication.

Section 505 of the PATRIOT Act greatly expanded the Federal Bureau of Investigation’s information gathering authority through the issuing of an administrative subpoena known as a National Security Letter. This is an official subpoena issued by the FBI in authorized national security investigations “to protect against international terrorism or clandestine intelligence activities.” By law, NSLs can request only non-content information, such as transactional records or phone numbers dialed(6). However, the FBI is forbidden from requesting any content of “substance” such as the content of an email message.

One controversial aspect of the NSL is the optional inclusion of a nondisclosure provision. When the Director of the FBI or a designee authorizes the inclusion of a nondisclosure provision in an NSL, the recipient may not reveal the contents of the NSL or that it was received. The governments claims that the inclusion of a nondisclosure provision is sometimes necessary as it is intended to prevent the recipient of an NSL from compromising not only the current FBI investigation involving a specific person but future investigations as well, which would potentially hamper the Government’s efforts to address national security threats(7).

Without judicial review, the FBI is able to issue NSLs to telecommunication providers to obtain customer information including sources of payment, records of Internet activity, addressees and subject lines of emails, websites visited, and search queries. Some have grown to question how the government can allow the outsourcing of its data collection to private parties, only to later produce official subpoenas demanding that same information, accompanied with a gag order. Critics argue that this method allows the government to collect data on a massive scale while bypassing the normal requirement that the government pursue a warrant before conducting any authorized searches or seizures of the property of an individual.

Richard M. Thompson, in the report titled The Fourth Amendment Third-Party Doctrine(8), identifies a legal proposition, known as the third-party doctrine, which seems to permit the government access to, as a matter of Fourth Amendment law, a vast amount of information about individuals, such as the websites they visit; who they have emailed; the phone numbers they dial; and their utility, banking, and education records.

One criticism of the third-party doctrine derives from the belief that the doctrine does not accurately apply the “reasonable expectation of privacy” test. The 1967 Supreme Court case of Katz v. United States formulated the “reasonable expectation of privacy” test that is used to decide when a governmental intrusion constitutes a “search” under the Fourth Amendment(9). Katz was the culmination of a long legal debate about whether the Fourth Amendment covered government initiated electronic surveillance.

In an article titled The Case for the Third Party Doctrine(10), Orin Kerr identifies two primary arguments against the third-party doctrine, one doctrinal and the other functional. The doctrinal claim is that the Justices of the Supreme Court are wrong when they content that a person does not retain a reasonable expectation of privacy. This is based on the assumption that the Justices misunderstand privacy because they fail to realize the difference between exposure to one person and exposure to the public.

The second argument, the functional claim, is that the third-party doctrine is incorrect because it grants the government to much power such as the carte blanche power to access various forms of digital records at will. Kerr goes on to state that while individuals normally expect privacy in their bank records, phone records, and other third-party records, it is unreasonable to say that a person “voluntarily” surrenders information to third parties when they posses no realistic alternative and that this disclosure to third parties eliminates protection because it implies a certain level of consent. As Justice Marshall reasoned in his Smith(11) dissent, “it is idle to speak of ‘assuming’ risks in contexts where, as a practical matter, individuals have no realistic alternative.”

Kerr also points out some of the internal agency regulations that serve to limit the total number of NSLs and investigations performed by the FBI. At the federal level, for example, the Justice Department has issued the Attorney General’s Guidelines on Federal Bureau of Investigations Undercover Operations. These guidelines require that all undercover investigations to be preapproved by the field office’s Special Agent in Charge based on a written determination, supported by the facts and that the proposed operation will be effective and carried out in a minimally intrusive manner. These operations also can normally not involve expenditures of more than $50,000. Governmental over-site such as this is only one of the tools provided to the government to avoid the exploitation of the various investigative powers of these agencies.

While the government may have set in place regulation to deter abuse, giving the government such broad reaching investigative powers only serves to foster corruption as the government can’t confidently ensure that there won’t be any instances in which the data they are collecting will not be exposed publicly or privately to parties who may wish to use it for their own personal gain. Large data breaches have become more and more frequent, and affect some of the largest corporations in the world. The large amount of data possessed by the government for investigative purposes may prove a tempting target for some of the same individuals who commit these large breeches of information in the public sector. There is a substantial risk that the information possessed by the government could be used in the specific targeting of opposition groups by those in power.

While the government has an important role to play in the digital realm, a solution should be brought forth, through the traditional democratic process, to limit the government’s actions to those deemed reasonable based on written law. An online bill of right of sorts, which outlines the extent as to which the government can intrude on our digital lives and privacy. Perhaps a constitutional amendment, however difficult to obtain, would have the authority and longevity necessary to establish the precedent required to meet the challenges faced by our privacy in the digital age.

Citations:

(1) Executive Office of the President (March 2012). “Big Data Across the Federal Government”. White House.

(2) Griswold v. Connecticut, 381 U.S. 479 (1965)

(3) United States v. Jones, 132 S. Ct. 945, 565 U.S. (2012)

(4) Robert Barnes. “Supreme Court Limits Police Use Of GPS Tracking” The Washington Post. (Jan., 2012)

(5) USA PATRIOT Act (H.R. 3162)

(6) USA PATRIOT Improvement and Reauthorization Act of 2005: A Legal Analysis Congressional Research Service’s report for Congress, Brian T. Yeh, Charles Doyle, December 21, 2006.

(7) My National Security Letter, The Washington Post, 2007 Mar 23

(8) Richard M. Thompson. “The Fourth Amendment Third-Party Doctrine” Congressional Research Service. June 5, 2014.

(9) Katz v. United States, 389 U.S. 347 (1967).

(10) Orin S. Kerr. “The Case for the Third Party Doctrine” Michigan Law Review, Vol. 107, No. 4 (Feb., 2009), pp. 561-601

(11) Smith, 442 U.S. at 750 (Marshall, J dissenting)