The Digital Self: Can the 4th Amendment fit in 140 characters?

The Digital Self Can the 4th Amendment fit in 140 characters

As the media continues to lather itself into a frothy frenzy over Edward Snowden, the now famous and infamous leaker of classified National Security Administration surveillance operations, it is important to remember that it is us, the people, for whom this ongoing story matters most. It is a story about both technology and law, and the unholy nether region where the two cross paths. And it is this aspect of this wild tale that we need to focus on most – even if the legal mumbo jumbo makes us want to spend a whole day browsing BuzzFeed.

The legal debate surrounding the NSA’s PRISM surveillance program boils down to this: Supporters of the programs in the U.S. government say the gathering of data on citizens and foreigners is completely legal. Opponents say it may be legal – but it’s not constitutional.

This disconnect between our hopes and cynicism helps create the perfect wiggle room for “legal” dragnet surveillance.

This is an important distinction. The U.S. Constitution is, of course, the ultimate law of the land – the document on which all our laws are based, and by which they must abide. It’s entirely possible that the laws directly governing PRISM – the FISA Amendments Act and the Patriot Act – are unconstitutional, or are being used to justify unconstitutional activities, in which case the “it’s legal” argument means little. (Because these laws are interpreted by a secret court, nobody this side of top secret clearance can say so with certainty.) This is the premise on which some legal experts condemn NSA spying activities.

“The National Security Agency’s recently revealed surveillance programs undermine the purpose of the Foreign Intelligence Surveillance Act, which was established to prevent this kind of overreach,” writes Georgetown University law professor Laura K. Donohue in the Washington Post. “They violate the Fourth Amendment’s guarantee against unreasonable search and seizure.”

So what, exactly, constitutes “unreasonable searches and seizures” in this age of Facebook status updates and tweets? The answer, if you can even call it that, is far more complicated than you might think.

First, some background: “Analysis of a Fourth Amendment issue is typically based on two questions: (1) did a search or seizure occur? and (2) was the government action reasonable under the circumstances?” explains Alan Butler, Appellate Advocacy Counsel for the Electronic Privacy Information Center (EPIC) and an expert on digital Fourth Amendment issues. For a “search” to occur, the person being searched must have a “reasonable expectation of privacy” – reasonable to her or him, and reasonable to society as a whole – in which case law enforcement must obtain a warrant or consent to search before snagging whatever it is they want to snag.

However, a pair of profound court decisions from the 1970s – Smith v. Maryland and United States v. Miller – established what’s now known as the “third party doctrine,” which made it perfectly reasonable for Johnny Law to grab telephone records and some bank documents without a warrant “because the individuals had no ‘reasonable expectation of privacy’ in records held by third parties,” says Butler. This is the reason the NSA can collect all Verzion’s phone records without court approval.

“Law enforcement has taken the position that once an item is ‘shared,’ the user has no reasonable expectation of privacy.”

The good news for privacy hawks is that this “third party doctrine” has come under increased scrutiny, most notably by Supreme Court Justice Sonia Sotomayor in the recent United States v. Jones decision. And the seizure of telephone conversations, letters sent through the U.S. Postal Service, and even emails (that are less than six months old) all enjoy firm protections under the Fourth Amendment, courts have ruled. But social media? Well, that’s a whole other beast.

“Social media presents a number of interesting and unique Fourth Amendment issues that courts are only beginning to address,” says Butler. “One important question in this area is whether social media content is protected by the Fourth Amendment at all.”

For now, the courts have failed to fully answer this question, leaving law enforcement with ample leeway to go after a variety of data, including Facebook status updates, tweets, and other forms of social media communications.

“So far, law enforcement has taken the position that once an item is ‘shared,’ the user has no reasonable expectation of privacy and the Fourth Amendment doesn’t apply,” says Butler. “But, the Department of Justice acknowledges that the contents of e-mails and other electronic communications are protected by the Fourth Amendment even though they might be ‘held’ by third parties. Courts are still divided, as there is not yet clear guidance on this issue.”

In short, the jury is still out on what “searches and seizures” means with regards to social media. But what about the “unreasonable” part of the Fourth Amendment? That too has its complications.

In a 2012 Congressional Research Service report (pdf), attorney Richard M. Thompson II explains how our changing view of privacy and technology affects the Fourth Amendment. He’s writing here about domestic drone surveillance, but it applies equally to social media, Google Glass, or any other technology that becomes ingrained into modern life.

“The touchstone of the Fourth Amendment is reasonableness,” writes Thompson. “A reviewing court’s determination of the reasonableness of a drone search would likely be informed by … society’s conception of privacy in an age of rapid technological advancement.”

It is our rapidly evolving “conception of privacy in an age of rapid technological advancement” that makes interpreting the Fourth Amendment infinitely more difficult. We collectively share an unprecedented amount about our lives on the public Web; we even know instinctively that government agencies like the NSA have access to what we do online – a fact that, even alone, muddles what kind of privacy we truly expect. And yet, we continue to fret over Facebook privacy settings and Instagram terms of service. We install AdBlock Plus and sign up for VPNs. We strive for privacy, for control of our data, but expect none of it. This disconnect between our hopes and cynicism helps create the perfect wiggle room for “legal” dragnet surveillance.

The dangers inherent in our changing expectations of privacy are “something I bring up a lot to explain why being vigilant about privacy is important,” says Sarah Downey, an attorney and privacy analyst for anti-tracking software company Abine.

“If American society gets complacent about things like widespread sharing of restricted information, NSA spying, and corporate data collection, we weaken our constitutional protections against privacy invasions and searches,” she says. In other words, the very act of sharing parts of your life online, or agreeing to hand over your data recklessly, potentially weakens the constitutional protections awarded to us all.

Going forward, “courts will be forced to update their Fourth Amendment analysis to adjust for new technologies,” says Butler. Hopefully, he says, “widespread use of Internet storage and services will force courts to reconsider the antiquated notion that all records held by third parties are subject to government inspection without regard for the Fourth Amendment.”

If not, we will all be forced to rely on Congress to “prevent the erosion of our basic Fourth Amendment rights under the new technological and economic models,” Butler says. Given the legal status of PRISM, we can all guess how that will turn out.

Now, where’s that BuzzFeed list?

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