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| | | -- By WillPalmer - 06 Mar 2015 | |
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< | Section I: Erosion of the Fourth Amendment Through the "Reasonable Expectations" Test. | >
> | Section I: Fourth Amendment Protection Expanded from Physical Places to Include an Individual’s Reasonable Expectation of Privacy
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The Fourth Amendment’s protection against unreasonable searches and seizures of one’s “persons, houses, papers and effects,” is historically grounded in notions of trespass and trespass to chattels. Despite its original focus on physical spaces, the Court expanded the Fourth Amendment’s protections to include a person’s reasonable expectation of privacy in Katz v. U.S., 389 U.S. 347 (1967). This decision was an expansion of the Fourth Amendment’s protections; in finding that a wiretap of a public phone booth violated a person’s reasonable expectation of privacy, it directly overturned Olmstead v. United States, 277 U.S. 438 (1928), which had previously held that wiretaps do not violate the Fourth Amendment because they involve no physical trespass on the target’s property. Katz effectively added a “reasonable expectations” test to the Fourth Amendment, while leaving intact its longstanding protection against government’s physical trespass. Thus, under Katz, unwarranted searches of personal physical spaces and property are per se unreasonable, while other searches are subject to a two-part reasonableness test that considers the individual’s subjective expectation of privacy, as well as whether that expectation was reasonable. | | | | |
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> | However, in adding a reasonable expectations test to the Fourth Amendment, the Court opened Pandora’s Box, with the net result of significantly limiting the scope of Fourth Amendment protections. Under the third party doctrine, individuals have no reasonable expectation of privacy with regard to information they knowingly share with a third party. By this logic, the Court has applied the reasonable expectations test to hold that neither business records nor metadata (or “addressing information”) are protected by the Fourth Amendment. First, United States v. Miller, 425 U.S. 435 (1976) held that an individual has no reasonable expectation with regard to a bank’s records of her or his accounts, because the bank merely recorded “transactions to which the bank was itself a party.” Id. at 442. Second, Smith v. Maryland, 442 U.S. 734 (1979) held that a person has no reasonable expectation of privacy with regard to the phone numbers, dates, and times at which they make calls from their landline phones, for two reasons. First, the Court found that the person effectively conveyed these facts to the telephone company in the process of using their service to make the call. Id. at 745. Second, since telephone companies regularly make records of the numbers dialed for billing and general business purposes, any person would be reasonably aware that they possess this information and have the power to disclose it. Id. at 742. | | | | |
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< | The Fourth Amendment’s protection against unreasonable searches and seizures of one’s “persons, houses, papers and effects,” is historically grounded in notions of trespass and trespass to chattels. Despite its original focus on physical spaces, the Court expanded the Fourth Amendment’s protections to include a person’s reasonable expectation of privacy in Katz v. U.S., 389 U.S. 347 (1967). | >
> | Section II: Notions of Property Ownership Shape the Reasonableness Of Expectations of Privacy | | | | |
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Why don't you link the cases you cite? In the 21st century, isn't it fair for the reader to be given what she needs to read your work carefully. Katz v. United States, 389 U.S. 347 (1967) is much better than your citation, and is no harder to make. Please fix in the next draft.
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> | Under the standard set by the above cases, the Fourth Amendment is not even implicated by the government’s bulk collection of metadata, because an individual has no claim to ownership to a company’s records of her calls or emails. Recent cases addressing the NSA’s collection of bulk metadata illustrate the underlying assumption that the Fourth Amendment does not apply because individuals do not own or have a claim to the records in question. In ACLU v. Clapper 959 F.Supp.2d 724, 752 (S.D.N.Y. 2013), the court, relying on Smith, denied a Fourth Amendment challenge to the bulk collection of metadata, holding that its protections were inapplicable where the individual does not own the records in question: | | | | |
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< | This decision was an expansion of the Fourth Amendment’s protections; in finding that a wiretap of a public phone booth violated a person’s reasonable expectation of privacy, it directly overturned Olmstead v. United States, 277 U.S. 438 (1928), which had previously held that wiretaps do not violate the Fourth Amendment because they involve no physical trespass on the target’s property. Katz effectively added a “reasonable expectations” test to the Fourth Amendment, while leaving intact its longstanding protection against government’s physical trespass. Thus, under Katz, unwarranted searches of personal physical spaces and property are per se unreasonable, while other searches are subject to a two-part reasonableness test that considers the individual’s subjective expectation of privacy, as well as whether that expectation was reasonable. | >
> | “the business records created by Verizon are not ‘Plaintiffs’ call records.’ Those records are created and maintained by the telecommunications provider, not the ACLU [the plaintiff]. Under the Constitution, that distinction is critical, because when a person voluntarily conveys information to a third party, he forfeits his right to privacy in the information.” | | | | |
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< | However, in adding a reasonable expectations test to the Fourth Amendment, the Court opened Pandora’s Box, with the net result of significantly limiting the scope of Fourth Amendment protections. Under the third party doctrine, individuals have no reasonable expectation of privacy with regard to information they knowingly share with a third party. By this logic, the Court has applied the reasonable expectations test to hold that neither business records nor metadata (or “addressing information”) are protected by the Fourth Amendment. First, United States v. Miller, 425 U.S. 435 (1976) held that an individual has no reasonable expectation with regard to a bank’s records of her or his accounts, because the bank merely recorded “transactions to which the bank was itself a party.” Id. at 442. Second, Smith v. Maryland, 442 U.S. 734 (1979) held that a person has no reasonable expectation of privacy with regard to the phone numbers, dates, and times at which they make calls from their landline phones, for two reasons. First, the Court found that the person effectively conveyed these facts to the telephone company in the process of using their service to make the call. Id. at 745. Second, since telephone companies regularly make records of the numbers dialed for billing and general business purposes, any person would be reasonably aware that they possess this information and have the power to disclose it. Id. at 742. | >
> | As this excerpt suggests, the reasonableness test from Katz was never entirely distinct from notions of the property and ownership that underlay the original conception of the Fourth Amendment as a protection against physical trespass. Much like the Court in Miller and Smith, supra, the court in ACLU v. Clapper held that there was no reasonable expectation of privacy precisely because the individual does not own the data in question. | | | | |
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< | Section II: A Property-Based Approach to Data Privacy | >
> | On appeal, the Second Circuit ultimately decided that the NSA’s bulk collection of metadata exceeded its statutory authority under the Foreign Intelligence Surveillance Act (FISA), and thus declined to rule on the constitutional questions. Nevertheless, the opinion contains dicta addressing the constitutionality of the program. First, the opinion notes that the standard for a court order requesting information under FISA is the same standard that applies to a subpoena duces tecum issued pursuant to a grand jury investigation or a court order: “In adopting § 215, Congress intended to give the government, on the approval of the FISC, broad-ranging investigative powers analogous to those traditionally used in connection with grand jury investigations into possible criminal behavior.” American Civil Liberties Union v. Clapper, No. 14-42-CV, 2015 WL 2097814 at *19 (2d Cir. May 7, 2015). This “relevance standard “is a much lower threshold than that required for a search based on probable cause, and merely requires that there be “reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation.” 50 U.S.C.A. § 1861(b)(2)A). Thus, under this lower standard, “it has long been commonplace for grand juries to subpoena an individual’s telephone records from the individual’s telephone service provider, in the absence of probable cause or a warrant issued by a judge.” American Civil Liberties Union v. Clapper, No. 14-42-CV, 2015 WL 2097814 at*28 (2d Cir. May 7, 2015). | | | | |
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< | As the above cases suggest, the third party doctrine crucially relies on the third party’s first amendment right to disclose information it possesses. While a technology company’s handing over telephonic metadata to the government may have little to do with the notion of free expression, it nevertheless falls under the scope of First Amendment protection. If we were to treat certain types of personal information as distinct from the speech covered by the First Amendment, it could limit the ongoing erosion of the Fourth Amendment at the hands of the reasonable expectations test. | >
> | Second, the opinion affirms that the constitutionality of this lower threshold for document requests is predicated on the notion of ownership. The court discussed the government’s argument, upheld by the district court, that the acquisition of these records do not violate the Fourth Amendment, “or even implicate[] its protection at all,” “because the records are not his or hers alone.” Id. at 29 (emphasis added). It is at least worth noting that the court distinguishes bulk collection of metadata from grand jury subpoenas; unlike grand jury subpoenas, where “the determination of relevance is constrained by the subject of the investigation,” in the case of bulk metadata collection, “the government does not even suggest that all of the records sought, or even necessarily any of them, are relevant to any specific defined inquiry.” Id. at 21. Ultimately, the court rejected this broad reading of relevance as incompatible with the powers that § 215 grants.
However, the court also suggested that “rules that permit the government to obtain records and other information that consumers have shared with businesses without a warrant seem much more threatening as the extent of such information grows,” citing Justice Sotomayor's concurrence in U.S. v. Jones, 742 S.Ct. 945, 949 (2012), in which she argues essentially the same point. | | | | |
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What has one thing to do with another? A search warrant or subpoena describes some material to be turned over in response to a judicial order. What difference does it ever make whether the material sought is a pair of shoes or a newspaper?
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> | Section III: The Need for a Statutory Entitlement to One’s Personal Data | | | | |
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< | If individuals have a property interest in certain types of personal data, that could theoretically limit the discretion of companies to provide government access to that data.
Granted, such a fundamental conceptual shift comes with its own host of problems, some of which might be critically important for some parties, and irrelevant for others. First and foremost are the potential First Amendment implications: could such an approach be expanded to curb more conventional forms of free expression? Perhaps even more pressing is whether the denial of companies’ right to disclose information is itself a violation of the First Amendment, but to the extent that we conceive of certain types of personal information as a form of property, granting government access is comparable to a bank letting the government borrow money from one’s account without one’s consent.
Second, such a fundamental shift is completely at odds with the business models of almost every major internet technology company. As a practical matter, stiff opposition from the industry is a critical concern: any fundamental shift in case law would be challenged in court, and, failing that, likely would face a legislative reaction (at the behest of major technology companies). The ideal form of implementing this conceptual shift -- a constitutional amendment -- is equally problematic for the same reasons.
Third, likely the most difficult element in formulating a property-based approach to data privacy is determining its scope -- i.e., what types of data should be covered. Legislation already exists to provide individuals control over certain types of sensitive data about themselves, such as the Health Insurance Portability and Accountability Act and the Right to Financial Privacy Act. Susan W. Brenner & Leo L. Clark, Fourth Amendment Protection for Shared Privacy Rights in Stored Transaction Data, 14 J.L. & Pol’y 211 (2006). While it is difficult to articulate a unifying principle beyond the notion that certain types of data reveal “too much” about an individual to be subject to disclosure at the discretion of third parties, at least two types of data immediately stand out as fundamentally different in their power to disclose or reveal personal details: telephonic metadata, and GPS location data.
Two recent Supreme Court cases lend support to the view that these types of data are inherently, categorically different in their power to reveal personal information. First, Justice Sotomayor’s concurrence in U.S. v. Jones, 742 S.Ct. 945, 949 (2012) emphasized the power of GPS information to provide a holistic representation of an individual’s personal beliefs, habits, and relationships. Id. at 955. Second, the Court’s holding in Riley v. California, 134 S.Ct. 2473 (2014) held that the contents of an individual’s cell phone were protected by the Fourth Amendment precisely because of the sheer power of those contents to reveal a person’s inner life.
The draft can be improved by untangling the core legal argument, which is subject to a serious confusion as noted.
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> | Given the ongoing erosion of Fourth Amendment protections at the hands of the “reasonable expectations” test, we need a statutory solution that establishes a personal property interest in certain types of personal information. The precise nature of this property interest is debatable, but without it, any bulk collection of data is going to pass the “reasonable expectations” test, because an individual has no reasonable expectation of privacy with regard to another party’s personal business records.
Undoubtedly, the solution must be statutory. As the court noted in American Civil Liberties Union v. Clapper, No. 14-42-CV, 2015 WL 2097814 at *31 (2d Cir. May 7, 2015), “Congress is better positioned than the courts to understand and balance the intricacies and competing concerns involved in protecting our national security, and to pass judgment on the value of the telephone metadata program as a counterterrorism tool.” Precisely what kind of property interest a person has in their personal records can vary depending on how much they reveal, and there is already legislation that exists to provide individuals control over certain types of sensitive data about themselves, such as the Health Insurance Portability and Accountability Act and the Right to Financial Privacy Act. Susan W. Brenner & Leo L. Clark, Fourth Amendment Protection for Shared Privacy Rights in Stored Transaction Data, 14 J.L. & Pol’y 211 (2006). | | |
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> | These may provide some guidance as to the nature and scope of the interest that people should have over their metadata, or GPS data, or any other data whose collection is currently upheld on the basis of the reasonable expectations test, and which has the power to invade an individual’s privacy to the same extent that a search of their home or person would. Without this statutory protection, we will continue to see erosion of the Fourth Amendment, because people have no reasonable expectation of privacy with regard to records to which they have no claim. | | | \ No newline at end of file |
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