Privacy!

The Fourth Amendment in the Digital Age

Supreme Court Ruled that garbage is not an object of 4th amendment protection.

Opinion:

-Garbage is intended for "public consumption" and collection by a third party. The subject voluntarily gave up that information to a third party.

-Court is following stare decisis

Dissent:

-Trash is not abandoned, therefore the subject retains to right to privacy over his garbage.

-The garbage was concealed, indicating that the subject had a reasonable expectation of privacy

-Fourth amendment includes phrase "papers and effects" indicating that the expectation of privacy extends beyonds one's immediate person and surroundings.

Journalists first reported months after 9/11 that the FBI was sending out e-mails to the general public with a small attachment that if opened, would then remotely log every keystroke of the users, unbeknownst to them, similar to a powerful virus or trojan. This allowed the government to monitor users computer activity without needing a court order.

• Orin Kerr, George Washington U. Law Professor
• What can be protected under the 4th amendment?
• "Inside and outside" physical investigations
• Wireless connections (WiFi)
• Closed network of wires
• Non-content information
• Public
• Identity, location, time
• Content Information
• Private

“What a person knowingly exposes to the public, even in his home or office, is not subject to [constitutional] protection [as private information] (Katz v. United States)”.

US V Warshak

• Case justified E-mails protected under the 4th Amendment
• Your online information cannot be shared or used against you without proper legal justification
• Must have a warrant and Probable Cause
• Reasonable expectation for privacy on the Internet from e-mails on third party servers

A Bill of Rights for the Digital Age ?

Consumer

Bill

of Rights?

• On 22 February 2012, the Obama Administration outlined a set of online privacy principles that would help consumers control the use of their personal data gleaned from Internet searches.
• The framework for a new privacy code moves electronic commerce closer to a one-click, one-touch process by which users can tell Internet companies whether they want their online activity tracked.
• The agreement will force software developers to post conspicuous privacy policies detailing what personal information they plan to obtain and how they will use it. It also compels app store providers like Apple and Google to offer ways for users to report apps that do not comply.
• The next step will be for the Commerce Department to gather Internet companies and consumer advocates to develop enforceable codes of conduct aligned with a “Consumer Privacy Bill of Rights” released as part of the administration’s plan on Wednesday.

• Olmstead v. United States (1928)

• Our computer hardrives contain information that is simply... NO ONE ELSE'S BUSINESS
• But our online privacy is threatened by much more than the average hacker.

Reasonable Expectation of Privacy

• The issue privacy is NOT an entirely new problem ...
• Emerging technologies innevitably produce new kinds of problems that our current legal institution is not prepared to/cannot address

What can be considered reasonable?

“what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”

Greenwood v. California (1988)

4th Amendment

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Digital Content

USA Patriot Act (2001)

According to majority opinion of Greenwood v. U.S, digital content handled by third parties cannot be held under the fourth amendment. A text, for example, is purposefully given to one's cell-phone carrier for transport to another person. Is this analogous to a garbage man taking one's garbage away?

Recall the fourth amendment's language: "papers and effects"

Passed only days after 9/11, the Patriot Act enabled the Government with more power and less restrictions on investigation in the United States. Various methods and tools of communication were easily searched and regulated. Phone calls, e-mails, medical, financial information, and potential terrorist activites were closely monitored. Many of these powers and lowered standards were not limited to terrorist investigations, and the Act has drawn extensive criticism as an unconstitutional invasion of privacy and civil liberties.

David Lazarus: Privacy "Bill of Rights" Isn't Good Enough

Robbins v. Lower Merion

School District (2010)

The federal trial court issued an injunction against the school district after plaintiffs charged two suburban Philadelphia high schools violated the privacy of students and others when they secretly spied on students by surreptitiously and remotely activating webcams embedded in school-issued laptops the students were using at home. The schools admitted to secretly snapping over 66,000 webshots and screenshots, including webcam shots of students in their bedrooms

• This only focuses on the private sector's activites, not the governments
• Said to be two different issues, but are they?
• The government has given itself constitutional leeway to go through citizens' information without a warrant

Privacy concepts applied to the Internet

"Magic Lantern" FBI Surveilance

Program (2001)

Internet Compatibility Problems

with the 4th Amendment

These cases illustrate the government's dismissal of privacy rights when dealing with emerging technologies, and illustrate the need for new applications of privacy laws and the 4th amendment to the digital sphere.

Reasonable expectation of Privacy