September 20, 2013
The Fourth Amendment and New Technologies in a Digitized World
Paul Larkin, Senior Research Fellow, Heritage Foundation
Prof. Susan Herman, President, American Civil Liberties Union
Prof. Orin Kerr. George Washington University, School of Law
Miguel Estrada, Partner, Gibson, Dunn, and Crutcher LLP
The Fourth Amendment protects all U.S. citizens against, “unreasonable searches and seizures” and requires any warrant demanding personal information to be backed by probable cause.
In the wake of the scandal surrounding the NSA’s data collecting program, PRISM, the Heritage Foundation invited legal experts to discuss how the Constitution should be interpreted to protect a U.S. citizen’s digital privacy. As our society gains access to more powerful and more personal technology, such as smartphones, and becomes increasingly dependent on third party providers to manage our communications what level of privacy can we expect to retain? Prof. Orin pointed out that, before telephones and the internet existed, the government had the right to track and monitor people; if two people had a conversation in a private home the government could monitor who entered the home, how long they were there for, where the home was, perhaps where the people went afterwards, etc., the only thing the government couldn’t have access to was the content of the conversation. The Patriot Act gave the government similar access to impersonal communication methods, granting access to phone numbers a suspect dialed, the duration of their calls, and the locations from which the calls were taking place, but still demanded that any monitoring be relevant to on going investigations; Mr. Estrada pointed out that having to linking the issue of a search warrant issue to relevance and reasonability has historically tied privacy rights to the criminal courts. What we are now seeing is an attempt to extend this reasonability out in to the public sphere. Prof. Herman and Mr. Estrada both voiced strong concerns that the relevancy needed to justify monitoring is being stretched to dangerous lengths under the Obama Administration, especially in the area of digital data.
A common argument cited by backers of monitoring programs is that when a person voluntarily entrusts their personal information to a third party, such a phone company, email server, or cloud storage provider, they are forfeiting their right to privacy by entrusting their information with an outside party. If a person is ok with trusting their information to a company why not give that access to the government, unless of course they have something to hide? Prof. Herman responded to this common objection by arguing that the existence of this type of program can deter controversial actions and damages our free society, a woman may be less likely to call an abortion clinic if she knows that the record will be recorded; further, there is plenty of potential for such a program is ripe for abuse and, as a secret program, has no public oversight; lastly, large scale monitoring programs greatly mar the relationship between the government and its citizens. Prof. Kerr echoed this sentiment, claiming that it is the secrecy that is most damaging, the government has been granted access to relevant metadata in the past, but the fact that, when looking at the government at face-value, there was no way to tell that it was monitoring entire data bases is greatly damaging to the programs legality (public expectations have shaped cases of privacy in the past, see Katz v. United Stats). Prof. Kerr and Mr. Estrada both argued that the PRISM program lost legitimacy when it went against societal expectations; when one hands a bag to a bellhop or puts it in a coat check it is expected that its privacy will continue to be respected despite being placed in the charge of a neutral party. It was concluded that the privacy we expect in the physical world should be as closely transferred to the digital world as possible; tangibility of the objects being probed should not be a factor.