The 4th Amendment and Digital Life - #KnowYourRights


“Cell phones and the services they provide are such a pervasive and insistent part of daily life that carrying one is indispensable to participation in modern society.” - US Supreme Court


Living Life on Record

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The internet was designed with interconnection—not security—in mind. Yet as the world becomes increasingly dependent on its features, the more we notice the vulnerabilities in our technological infrastructure that have made it possible to easily retrieve and record data about any and every individual. With such pervasive access, the NSA, GCHQ, and other foreign intelligence agencies, hacker groups, and corporate giants all gather preposterous amounts of private data from individuals around the world. The lack of transparency has not only lead to mistrust of our governments and corporations, but has also impeded our ability to freely question, inform and express ourselves.

“GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” - Justice Sonia Sotomayor

To put the sheer amount and character of the data gathered into perspective, it includes GPS data, call logs, contacts, browsing history, system specifications, searches, internet profiles, e-mails, texts, schedules, installed applications, and much more. You would think all this private information would be protected from unwarranted intrusion but unfortunately the American legal system still has a lot of catching up to do when it comes to reconciling civil rights with the digital age, but it’s off to a good start.

Applying the 4th Amendment

In the 2013 case of Riley v. California (Read More), Chief Justice Roberts states, “Although the data stored on a cell phone is distinguished from physical records by quantity alone, certain types of data are also qualitatively different…Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building.” Citing the 2012 ruling in United States v. Jones, concurring with Justice Sonia Sotomayor, that “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” Thus the court ruled in agreement to extend Fourth Amendment protections to data stored on devices such as call logs and contacts. So, if the government wants to look at that data, they’d need a warrant to do so.

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The police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. A warrantless search is reasonable only if it falls within a specific exception to the Fourth Amendment’s warrant requirement.” - US Supreme Court

Behold the 4th Amendment of the digital age. And yet, this ruling does not prevent the third-party doctrine from being cited in other cases concerning privacy matters. Brought about by Smith v. Maryland, the doctrine allows for the interpretation that when data is surrendered to a third party, one abandons all expectations of privacy. Meaning that a great amount of personal information is available to be gathered and reviewed without warranted access. All of the bits of private user information being gathered are generally stored away on various third party servers and then collected by authorities relying on the third-party doctrine. Such loopholes within the framework for protecting rights and in upholding due process undermines the significance of the rights they are meant to guarantee as they can be so easily circumvented with the justification that it is within the understanding of the law to do so.

In 2017, a major criminal case made its way up to the supreme court, Carpenter v. US (Read More), challenging the third-party doctrine, at least within the scope of this case. The supreme court held that the third-party doctrine is largely limited its capacity to be invoked due to:

“a world of difference between the limited types of personal information addressed in Smith and US v. Miller and the exhaustive chronicle of location information casually collected by wireless carriers. The third-party doctrine partly stems from the notion that an individual has a reduced expectation of privacy in information knowingly shared with another. Smith and Miller, however, did not rely solely on the act of sharing. They also considered “the nature of the particular documents sought” and limitations on any “legitimate ‘expectation of privacy’ concerning their contents.” In mechanically applying the third-party doctrine to this case the Government fails to appreciate the lack of comparable limitations on the revealing nature of cell-site location information (CSLI). Nor does the second rationale for the third-party doctrine— voluntary exposure—hold up when it comes to CSLI. Cell phone location information is not truly “shared” as the term is normally understood. First, cell phones and the services they provide are “such a pervasive and insistent part of daily life” that carrying one is indispensable to participation in modern society. Second, a cell phone logs a cell-site record by dint of its operation, without any affirmative act on the user’s part beyond powering up (Source).”

Although it is not a broad ruling, the Carpenter case set up a sturdy foundation for future interpretations dealing with 4th amendment protections of digital privacy. What remains to be addressed are the concerning practices of corporations gathering, handling, storing, and sharing private data largely with little to no notice or control. In order to truly address the issue of digital privacy, at least within the US, provisioning for greater controls and expectations on the treatment of private digital data, not unlike the E.U.’s General Data Protection Regulation (GDPR) or California’s Consumer Privacy Act is vitally necessary.

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DISCLAIMER: This article is not meant to constitute or imply legal counsel in any manner or capacity.