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< | Technology is Eroding the Fourth Amendment. Can Courts Stop it? | >
> | Technology is Eroding the Fourth Amendment. Can We Stop it? | | | -- By JessicaCorey - 06 Mar 2017
A Radically Different Fourth Amendment | |
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< | The Fourth Amendment was drafted and ratified under two assumptions that do not still hold true today, first, that the largest invasion of a person’s privacy is associated with their home, and second, that law enforcement has restricted resources and therefore cannot invade privacy on a large scale. Technology has radically changed these two assumptions and Courts have been slow to catch up, allowing for large gaps in 4th amendment law. According to the Pew Research Center, at least two-thirds of Americans now own smartphones and 84% of Americans own a computer.1 As we know, computers and Smartphones contain vast amounts of personal data all available in one location. With the advent of new technology, personal data is now not just on our phones and computers, but can be available online through social media, with our digital assistants, such as Amazon’s Alexa, our fitbits and smartwatches, and even our lights and thermostats, such as the nest thermostat. With 90% of the world’s data created in the last two years, increasing the use of these devices will only continue to exacerbate the amount of personal data that is collected.2 Because these devices have immense informative capabilities that can be easily exploited by law enforcement and other government agencies, it is up to the courts to ensure that the fourth amendment is protected in the wake of all this new technology. | >
> | The Fourth Amendment was drafted and ratified under two assumptions that do not hold true today, first, that the largest invasion of a person’s privacy involves their home, and second, that law enforcement has restricted resources and cannot invade privacy on a large scale. With the advent of new technology, personal data is now available on a larger scale than ever before, with personal data not just on our phones and computers, but online through social media, with our digital assistants, such as Amazon’s Alexa, our fitbits and smartwatches, and even our lights and thermostats, such as the nest thermostat. With 90% of the world’s data created in the last two years, increasing the use of these devices will only continue to exacerbate the amount of personal data that is collected. As is clear, technology has radically changed these two assumptions, yet lawmakers and Courts have been slow to catch up, allowing for large gaps in 4th amendment law. | | |
Data Mining | |
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< | The concern surrounding this debate is that of “data-mining.” Data mining can be loosely defined as “searches of one or more electronic databases of information concerning U.S. persons, by or on behalf of an agency or employee of the government.”3 This can include searches done by either persons or artificial intelligence of information that can be gathered using electronic services. More specifically, data mining can be grouped loosely into two categories: subject-based, which involves gathering and analyzing information about a specific individual, or pattern-based, which involves analyzing information to identify patterns of transactions or behaviors that may correlate to suspect behavior. As we can see, because law enforcement or government agencies do not have to physically intrude upon an individual's space to gather a wealth of information about them, nor do they have to worry too much about scarcity of resource, since with artificial intelligence they can have AI do all of the gathering and analyzing work for them, the traditional assumptions of the fourth amendment do not offer much protection against data-mining. Data mining can allow law enforcement agencies to piece together puzzles and suspect individuals that they never would have otherwise, which is one of the greatest fears behind the power of data mining.
Court's Involvement
While originally, under In Re Directives, the Court ruled that data gathered must be for the special need of national security purposes and not for “garden variety criminal investigations,”4 a recent ruling by the Foreign Intelligence Surveillance Court in 2015 ruled that while information collected by the NSA must be for "foreign intelligence" purposes during the initial collection. However, once they have that information, it can be searched by the FBI for regular criminal investigations without any need for a warrant or prior court involvement.5 This is an incredible erosion of the protections of the fourth amendment.
Scope of Data Mining
Data mining becomes particularly scary when the depth and breadth of it is realized.
The general populous is aware of many of the high-tech surveillance techniques such as cameras, drones, GPS tracking, and cellphone collection. However, few people understand how that technology can link to provide a very detailed picture of an individual life. Knowing you called a certain number (cell data), drove to a certain house (drone or camera), and repeated that trip every week (GPS) pales in comparison to knowing those facts plus the time the bedroom light comes on in that house (nest thermostats), the elevated heartbeat in that bedroom (fitbit), and the opening of a particular pill bottle (smart pill bottles), unusual electricity use at your house (smart lights), etc. all of which might provide law enforcement a clear picture of a person’s life without ever entering their home. This example represents the problem of aggregation; police may no longer need to physically follow a suspect--smart technology allows them to do that remotely. The Fourth Amendment does not currently protect information shared with third parties. If police wanted to obtain the data provided by the suspect's smart appliances directly from the company who monitors those appliances, they can without much Fourth Amendment difficulty. Luckily however, many of these companies have shown that they will not share data with law enforcement unless forced to. However, the fact that police can search and aggregate so much personal data should be a concern to anyone, especially in wake of the case allowing the FBI to use already gathered information in criminal prosecutions.
A Possible Solution? | | | | |
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< | One possible solution the Courts can use is to shift to what scholars are calling the Mosaic theory of the fourth amendment. The mosaic theory suggests that while an individual data point collected by the police may not constitute a search, an aggregation of many personal data points by the police would constitute a search as it paints a larger picture than any one data point alone which.6 While the mosaic theory would help protect subject-based data mining, it does not do much in the way to protect against pattern-based data mining, as pattern based data mining is looking for trends, not anyone individual person. The other difficulty is at what point does data collection constitute a search? It will be difficult for the courts to delineate exactly when the line is crossed. Ultimately, I believe it is a step in the right direction to work to maintain the protections of the fourth amendment in wake of ever growing new technology. The Courts must be on top of this issue to protect our fundamental liberty. | >
> | The concern surrounding this debate involves “data-mining.” Data mining can be loosely defined as “searches of one or more electronic databases of information concerning U.S. persons, by or on behalf of an agency or employee of the government.” This can include searches done by either individuals or artificial intelligence.
Data mining becomes particularly scary when the depth and breadth of it is realized. While people are generally aware of many of the high-tech surveillance techniques, few people understand how that technology can link to provide a very detailed picture of an individual life. The State can know you called a certain number (cell data), drove to a certain house (drone or GPS), the time your bedroom light comes on (nest thermostats), if your heart rate is elevated (fitbit), unusual electricity use at your house (smart lights), and so on, all of which provide law enforcement a clear picture of a person’s life without ever entering their home. | | | | |
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< | Sources | >
> | The Erosion of the Fourth Amendment | | | | |
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> | The Fourth Amendment does not currently protect information shared with third parties. If police wanted to obtain the data provided by the suspect's smart appliances directly from the company who monitors those appliances, they can without much Fourth Amendment difficulty. Luckily however, many of these companies have shown that they will not share data with law enforcement unless forced to. However, that doesn’t stop that data from being monitored by certain police agencies who can access it without the help of the company. | | | | |
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Why make footnotes consisting of URLs in writing for the Web? Make links out of them, so the reader can follow up with a click. What possible benefit accrues from making reading harder?
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> | This is troublesome, because under the guise of fighting terrorism, the U.S. has continued to move in a direction eroding the fourth amendment. For example, initially, under In Re Directives, the Court ruled that data gathered by the NSA must be for the special need of national security purposes and not for “garden variety criminal investigations.” However, a recent ruling by the Foreign Intelligence Surveillance Court in 2015 ruled that while information collected by the NSA must be for "foreign intelligence" purposes during the initial collection, once they have that information, it can be searched by the FBI for regular criminal investigations without any need for a warrant or prior court involvement. It is this type of decision that should make citizens wary to the ever shrinking role of the fourth amendment. | | | | |
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< | 1. http://www.pewinternet.org/2015/04/01/us-smartphone-use-in-2015/ | >
> | Solutions? | | | | |
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< | 2. https://www.sciencedaily.com/releases/2013/05/130522085217.htm | >
> | One way to mitigate the data-mining power the State has is to stop sharing our personal data with smart products. There are many different ways consumers can protect themselves against data mining, through VPNs or proxies, limiting the services we use etc.; the problem is getting people to care enough to do it. State and local Lawmakers could fund organizations that spread awareness on these issues or pass bills requiring schools to educate youth in technology privacy and security, but even if any lawmaker would be willing to spend their political capital on such laws, it is questionable how much impact such information would have on getting people to guard their personal data. | | | | |
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< | 3. Tech. & Privacy Advisory Comm., Dep’t of Defense, Safeguarding Privacy in the Fight Against Terrorism xiii (2004), | >
> | Alternatively, lawmakers could pass bills requiring a warrant for all nonpublicly available data searching. Requiring court involvement prior to search is likely to help protect the fourth amendment. Unfortunately, in the age of terrorism, lawmakers are less concerned with privacy and therefore we are likely to continue to see an erosion of the fourth amendment. | | | | |
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< | 4. https://fas.org/irp/agency/doj/fisa/fiscr082208.pdf | >
> | Thus it seems best to look to the courts to protect people by preventing data mining from being used unconstitutionally against people. One place to start is discarding the outmoded third party standard as applied to technology. As illustrated above, it is almost impossible to not interact with some kind of smart technology that reveals sensitive information about us. And yet all that data is always being shared with a third party, i.e. the company that made that product, at the very least. Third party doctrine for technology can be delineated from the rest of the third party doctrine by developing a voluntariness to share data. For example, a GPS user wants to get directions to the supermarket, but does not voluntarily want the company to know where he is located, in this instance his data should not be considered "shared with a third party." | | | | |
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< | 5. https://www.dni.gov/files/documents/20151106-702Mem_Opinion_Order_for_Public_Release.pdf | >
> | The Third Circuit seemed to adopt a similar approach involving sharing information with cell phone companies. This suggests a willingness of Courts to reconsider how third party doctrine for technology is fundamentally different than conventional third party doctrine as there is a difference in the voluntariness of shared information. This standard would allow people to use technologies require data mining as part of their use agreement, without exposing them to all the unwanted results from having their information collected. This would also necessitate a slight shift in the understanding of the reasonable standard of privacy doctrine, however, since a majority of Americans would expect privacy from their devices, it makes sense that a reasonable person would expect to have that data protected. | | | | |
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< | 6. Orin S. Kerr, The Mosaic Theory of the Fourth Amendment, 111 Mich. L. Rev. 311, 313 (2012) | >
> | [999] | | | | |
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> | 1. https://www.cdt.org/files/security/usapatriot/20040300tapac.pdf | | | | |
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< | One half-baked law
review article doesn't make a "what scholars are calling." As we discussed, the meaning of the word "search" has changed. The whole business of marching up one side of the hill and down the other in the Michigan law review means no more than that. Calling the assembly of knowledge in another man's brain (silicon or carbon) a "search" is not going to make the constitutional provision work any better than calling the defense budget "quartering." | >
> | 2. https://fas.org/irp/agency/doj/fisa/fiscr082208.pdf]] | | | | |
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< | This draft's primary problem was that it spent all but the last paragraph on explaining a problem and that last paragraph advertising a law review article which somehow contained a magic alternative. But the problem was the problem I spent two weeks explaining, and the magic solution is just another lengthy way of explaining with many footnotes and a delicious obtuseness the same problem all over again. What would make the most improvement in the draft would be to shorten the explanation of the problem, on which we can agree, and to offer some actual (not taken from Kerr) suggestions about decisions the courts could make, probable or improbable politically as they may be, but sound legally, for the retention of constitutional integrity.
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> | 3. https://www.dni.gov/files/documents/20151106-702Mem_Opinion_Order_for_Public_Release.pdf | | |
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> | 4. See In re Application of the United States of America for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, 620 F.3d 304, 317-18 (3d 2010) |
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