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SidneyLeeSecondEssay 3 - 18 Dec 2024 - Main.SidneyLee
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Privacy in Real Time | |
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> | Updated Draft | | | -- By SidneyLee - 27 Nov 2024
Introduction | |
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< | The Fourth Amendment is supposed to protect us from unreasonable searches and seizures without a warrant. More specifically, the law is supposed to protect our “reasonable expectation of privacy.” However, what constitutes a “reasonable expectation” as technology becomes increasingly invasive? In Riley v. California (2014) and Carpenter v. United States (2018), the Supreme Court formally recognized that individuals have a reasonable expectation of privacy in their cell phone content and historical location information (1). If, as the Supreme Court has stipulated in Katz v. United States (1967), that “what [one] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected” then we should be able to expect that our daily movements will not be precisely tracked, stored, and shared with the government at any time (2). | >
> | Technology has fundamentally changed our understanding of what it means to be observed in public–personal devices can now keep record of our location over time and personal information, and store such data indefinitely. Considering Katz, Riley, and Carpenter, is it “unreasonable” for the government to acquire digital information available on the open market? We are constantly revealing personal information through our personal devices, the law cannot assume that we automatically give up a reasonable expectation of privacy by using our phones, so integrated into modern daily life now, that inherently collect data on us. Cell phone users maintain a reasonable expectation of privacy such that law enforcement should be required to obtain a warrant before obtaining information from any third party. | | | | |
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< | Real Time Location Tracking
Real time location tracking enables law enforcement to monitor individuals through data bought from data brokers, often without warrants (3). Apps regularly request location access from phone users, either to operate as intended (such as weather apps and navigation apps) or to suggest targeted advertising (all social media apps). However, these apps also have the ability to share location access data with third parties. Data brokers can pay app developers for this personal data, and are able to gather data whenever the app has access (4). This means that data brokers can also access location data whenever the app is being actively used, or even obtain background access to data even when the app is closed (4). | >
> | Fourth Amendment Jurisprudence
Under the Fourth Amendment, “the right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Fourth Amendment was historically meant to protect individuals’ physical homes and property from indiscriminate searches and seizures that the colonists had experienced under the rule of British officers. The idea was that the Fourth Amendment protects only against physical intrusion into private spaces, but the Katz decision in 1967 held that “what [one] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected” (1). This represented an extension from the Fourth Amendment protecting physical, private spaces. The Katz test of intrusions into a reasonable expectation of privacy now forms modern Fourth Amendment jurisprudence. | | | | |
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< | One significant example of how law enforcement uses commercially available location data is when the U.S. military funded an academic project at Mississippi State University using location data to track individuals’ movements around Russian missile test sites (5). The U.S. Army’s policy on collection of cell phone data is to authorize collection as long as no “personal characteristics” of the phone’s owner are collected; thus it seems that the Army does not view detailed movements as “personal characteristics,” which provides an alarming indication of how the military will use data in the future (5). Another example that should cause concern domestically is the practice of “geofencing” by police. State and local law enforcement also buy location data to gather more information about individuals who may or may not be involved in crime. By “geofencing,” law enforcement are able to digitally “fence” a geographic area and then collect location data from everyone in that physical area (4). Geofencing still requires a warrant, but other companies like Fog Data Science rely on advertising identification numbers, collected from numerous apps with targeted advertising, that escape the warrant requirement by maintaining “anonymity” of specific phone users (6). | >
> | The Fourth Amendment was born out of a desire to protect individuals from government intrusion into our private spaces. Katz has expanded the Fourth Amendment’s jurisdiction beyond physical trespass of homes and persons to protect individuals even when in public spaces. The historical origins of the Fourth Amendment and the Katz decision should lead us to the conclusion that the government should have to undergo legal processes to access data gained from cell phones even if it is available on an open market. | | | | |
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< | Increasing Legal Protection of Privacy
As integrated surveillance technologies become increasingly common, the courts and legislature must maintain the Fourth Amendment’s warrant requirement and strengthen legal protection of our expectation of privacy. The Fourth Amendment at minimum should protect the requirement that, if the government wants to access data about an individual, it must obtain a court warrant based on probable cause. | >
> | Warrants, Third-Party Doctrine, and Data Brokers
Although judges and legal scholars disagree over whether the Fourth Amendment actually contains a warrant requirement, in light of the legal landscape as it operates today, we will assume the constitutional status of the warrant requirement. Under Carpenter, the “third-party exception” to warrants does not apply to cell phone towers–law enforcement must obtain a warrant to access weeks-long records of historical CSLI (2). The third-party doctrine from United States v. Miller and Smith v. Maryland holds that individuals do not have an expectation of privacy in information voluntarily shared with third parties, whether or not they intended the government to have access to the data. The key concept in the third-party doctrine is that of “voluntariness.” With cell phones, individuals cannot be said to have voluntarily disclosed the myriad of personal information that phone technology collects and that data brokers share. | | | | |
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< | On April 17, 2024 the House passed the Fourth Amendment Is Not For Sale Act, which would “close the data broker loophole” by prohibiting intelligence agencies and law enforcement from purchasing data without a warrant (7). The Executive Office of the President issued a statement opposing the Act on the grounds that it would prohibit intelligence and law enforcement from “obtaining certain commercially available information” while leaving foreign adversaries free to obtain and use the same information (8). However, the Administration ignores the fact that law enforcement most frequently obtains data to gather information about its own citizens to prosecute Americans, not its foreign adversaries.
The lack of federal regulation on data brokerage at an industrial scale shows how the legal landscape has failed to keep up with changing technology. Several states have made efforts to increase regulation of data brokers, including Vermont and California. Vermont passed the first data broker legislation in 2018 requiring data brokers to register with the Secretary of State and report information on their data collection activities (9). However, it should be the federal government’s responsibility to set baseline requirements for data broker activity across the whole country.
The legislature should go further in protecting Fourth Amendment rights by prohibiting practices by data broker companies like Fog. It is extremely alarming that Fog is able to sell data about virtually anyone to law enforcement without a court warrant simply because the individuals’ names are not revealed. It would be naive to think that just because an individual’s name is not given to intelligence agencies and law enforcement that someone’s identity could not eventually be ascertained through historical location access and personal data. Data brokers are able to build comprehensive profiles of individuals, and in the Supreme Court’s own words in Carpenter, “the time-stamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.’” | >
> | Real time location tracking enables law enforcement to monitor individuals through real-time tracking data bought from data brokers, often without warrants, because it is legal to collect, buy and sell such data (3). Apps regularly request location access from phone users, either to operate as intended (such as weather apps and navigation apps) or to suggest targeted advertising (all social media apps). However, these apps also have the ability to share location access data with third parties. Data brokers can pay app developers for this personal data, and are able to gather data whenever the app has access (4). This means that data brokers can also access location data whenever the app is being actively used, or even obtain background access to data even when the app is closed (4). Law enforcement accessing data from data brokers does not require a warrant. By “geofencing,” law enforcement are able to digitally “fence” a geographic area and then collect location data from everyone in that physical area (4). Geofencing still requires a warrant, but companies like Fog Data Science rely on advertising identification numbers, collected from numerous apps with targeted advertising, that escape the warrant requirement by maintaining “anonymity” of specific phone users (5). | | | | |
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> | The average cell phone user is unaware that their location tracking data is bought and sold by companies, and can be bought by law enforcement. Even if an individual is aware of these practices in the data market, individuals are not voluntarily giving information when the production and collection of such information is inescapable and automatic when phones unavoidably connect to nearby cell towers. Carpenter should be interpreted to protect real-time locking tracking data because it reveals the same type of “intimate window into a person’s life,” as held to be protected from a warrantless search by Carpenter. Specifically for geofence searches, the geofence warrants currently required should be held to a higher standard. Geofence warrants only specify a geographic location, but law enforcement at the time of the warrant do not specify a user or know if the user is going to turn up in the search (6). | | | Conclusion | |
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< | It is inevitable that we are going to be seen in public and that our presence will be perceived in some way, even simply by strangers looking. But surveillance technology has fundamentally changed our understanding of what it means to be observed in public. Today it may be a reasonable expectation that public accommodations (such as banks and stores) install video security cameras for their own safety, but perhaps this is just an example of how our benchmark of what we commonly think of as “reasonable” has moved further. Technology can now keep record of our location over time and personal information, and store such data indefinitely. It is important for us to not take it for granted that our daily movements are constantly tracked, and that we do not passively give up our right of privacy. | >
> | As surveillance technology becomes more pervasive and more profitable, Fourth Amendment case law will have to keep pace with the growing technology. On April 17, 2024 the House passed the Fourth Amendment Is Not For Sale Act, which would “close the data broker loophole” by prohibiting intelligence agencies and law enforcement from purchasing data without a warrant (6). The Executive Office of the President issued a statement opposing the Act on the grounds that it would prohibit intelligence and law enforcement from “obtaining certain commercially available information” while leaving foreign adversaries free to obtain and use the same information (7). There is an argument to be made for balancing government power and individual privacy, but if the government truly has probable cause to investigate an individual then a warrant would be justified. Carpenter is a positive revision of the Fourth Amendment analysis for modern technology and its protection against warrantless searches should be expanded to the data brokerage market. | | | | |
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This is a reasonably through summary. You have not explained why it is "unreasonable" for government to acquire information available on the open market. You need a substantive definition of the word that does a great deal of work in order to achieve that result, and you have offered no relevant argument at all in this draft. I shall try to show next term, on the basis of a full historical analysis, that there is no definition consistent with our constitutional history that will do so. | | | | |
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< | You do not give sufficient analytical weight here to the scope of Fourth Amendment remedies. Exclusion from evidence in an eventual prosecution is a relevant concern for police, whose activities involve collecting evidence to support prosecution, but is irrelevant to to the concerns of spooks, in a system which—uniquely among major societies—maintains s viable spook/cop distinction. Damages actions for constitutional tort are in theory available, but the breadth of relevant immunities now leaves that entirely theoretical. So what in fact does the Fourth Amendment prohibit? Your language is aspirational, to be sure, but the analysis would be improved by a more hard-headed realism.
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SidneyLeeSecondEssay 2 - 01 Dec 2024 - Main.EbenMoglen
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Privacy in Real Time | | | Conclusion
It is inevitable that we are going to be seen in public and that our presence will be perceived in some way, even simply by strangers looking. But surveillance technology has fundamentally changed our understanding of what it means to be observed in public. Today it may be a reasonable expectation that public accommodations (such as banks and stores) install video security cameras for their own safety, but perhaps this is just an example of how our benchmark of what we commonly think of as “reasonable” has moved further. Technology can now keep record of our location over time and personal information, and store such data indefinitely. It is important for us to not take it for granted that our daily movements are constantly tracked, and that we do not passively give up our right of privacy. | |
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This is a reasonably through summary. You have not explained why it is "unreasonable" for government to acquire information available on the open market. You need a substantive definition of the word that does a great deal of work in order to achieve that result, and you have offered no relevant argument at all in this draft. I shall try to show next term, on the basis of a full historical analysis, that there is no definition consistent with our constitutional history that will do so.
You do not give sufficient analytical weight here to the scope of Fourth Amendment remedies. Exclusion from evidence in an eventual prosecution is a relevant concern for police, whose activities involve collecting evidence to support prosecution, but is irrelevant to to the concerns of spooks, in a system which—uniquely among major societies—maintains s viable spook/cop distinction. Damages actions for constitutional tort are in theory available, but the breadth of relevant immunities now leaves that entirely theoretical. So what in fact does the Fourth Amendment prohibit? Your language is aspirational, to be sure, but the analysis would be improved by a more hard-headed realism.
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SidneyLeeSecondEssay 1 - 27 Nov 2024 - Main.SidneyLee
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Privacy in Real Time
-- By SidneyLee - 27 Nov 2024
Introduction
The Fourth Amendment is supposed to protect us from unreasonable searches and seizures without a warrant. More specifically, the law is supposed to protect our “reasonable expectation of privacy.” However, what constitutes a “reasonable expectation” as technology becomes increasingly invasive? In Riley v. California (2014) and Carpenter v. United States (2018), the Supreme Court formally recognized that individuals have a reasonable expectation of privacy in their cell phone content and historical location information (1). If, as the Supreme Court has stipulated in Katz v. United States (1967), that “what [one] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected” then we should be able to expect that our daily movements will not be precisely tracked, stored, and shared with the government at any time (2).
Real Time Location Tracking
Real time location tracking enables law enforcement to monitor individuals through data bought from data brokers, often without warrants (3). Apps regularly request location access from phone users, either to operate as intended (such as weather apps and navigation apps) or to suggest targeted advertising (all social media apps). However, these apps also have the ability to share location access data with third parties. Data brokers can pay app developers for this personal data, and are able to gather data whenever the app has access (4). This means that data brokers can also access location data whenever the app is being actively used, or even obtain background access to data even when the app is closed (4).
One significant example of how law enforcement uses commercially available location data is when the U.S. military funded an academic project at Mississippi State University using location data to track individuals’ movements around Russian missile test sites (5). The U.S. Army’s policy on collection of cell phone data is to authorize collection as long as no “personal characteristics” of the phone’s owner are collected; thus it seems that the Army does not view detailed movements as “personal characteristics,” which provides an alarming indication of how the military will use data in the future (5). Another example that should cause concern domestically is the practice of “geofencing” by police. State and local law enforcement also buy location data to gather more information about individuals who may or may not be involved in crime. By “geofencing,” law enforcement are able to digitally “fence” a geographic area and then collect location data from everyone in that physical area (4). Geofencing still requires a warrant, but other companies like Fog Data Science rely on advertising identification numbers, collected from numerous apps with targeted advertising, that escape the warrant requirement by maintaining “anonymity” of specific phone users (6).
Increasing Legal Protection of Privacy
As integrated surveillance technologies become increasingly common, the courts and legislature must maintain the Fourth Amendment’s warrant requirement and strengthen legal protection of our expectation of privacy. The Fourth Amendment at minimum should protect the requirement that, if the government wants to access data about an individual, it must obtain a court warrant based on probable cause.
On April 17, 2024 the House passed the Fourth Amendment Is Not For Sale Act, which would “close the data broker loophole” by prohibiting intelligence agencies and law enforcement from purchasing data without a warrant (7). The Executive Office of the President issued a statement opposing the Act on the grounds that it would prohibit intelligence and law enforcement from “obtaining certain commercially available information” while leaving foreign adversaries free to obtain and use the same information (8). However, the Administration ignores the fact that law enforcement most frequently obtains data to gather information about its own citizens to prosecute Americans, not its foreign adversaries.
The lack of federal regulation on data brokerage at an industrial scale shows how the legal landscape has failed to keep up with changing technology. Several states have made efforts to increase regulation of data brokers, including Vermont and California. Vermont passed the first data broker legislation in 2018 requiring data brokers to register with the Secretary of State and report information on their data collection activities (9). However, it should be the federal government’s responsibility to set baseline requirements for data broker activity across the whole country.
The legislature should go further in protecting Fourth Amendment rights by prohibiting practices by data broker companies like Fog. It is extremely alarming that Fog is able to sell data about virtually anyone to law enforcement without a court warrant simply because the individuals’ names are not revealed. It would be naive to think that just because an individual’s name is not given to intelligence agencies and law enforcement that someone’s identity could not eventually be ascertained through historical location access and personal data. Data brokers are able to build comprehensive profiles of individuals, and in the Supreme Court’s own words in Carpenter, “the time-stamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.’”
Conclusion
It is inevitable that we are going to be seen in public and that our presence will be perceived in some way, even simply by strangers looking. But surveillance technology has fundamentally changed our understanding of what it means to be observed in public. Today it may be a reasonable expectation that public accommodations (such as banks and stores) install video security cameras for their own safety, but perhaps this is just an example of how our benchmark of what we commonly think of as “reasonable” has moved further. Technology can now keep record of our location over time and personal information, and store such data indefinitely. It is important for us to not take it for granted that our daily movements are constantly tracked, and that we do not passively give up our right of privacy. |
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