The U.S. Supreme Court has been notoriously slow to tackle new technology. In 2002, Blackberry launched its first smart phone. On June 29, 2007, Steve Jobs announced the launch of the original Apple iPhone. But it took the Supreme Court until 2014 to decide a case involving the Fourth Amendment and smart phones – Riley v. California, 134 S.Ct. 2473 (2014). This past summer, the Supreme Court issued another opinion involving smart phones – Carpenter vs. United States, 138 S.Ct. 2206 (2018).
I am thrilled to have had the opportunity to interview Bart Huffman, a partner in Reed Smith’s global IP, Tech & Data Group, about the Supreme Court’s recent foray into smart phones.
The U.S. Supreme Court will be hearing arguments this week in Carpenter v. United States, which is one of the most important Fourth Amendment cases before the Court. The case involves whether the Third Party Doctrine will remain viable. If so, the Fourth Amendment will fade into obsolescence in today’s digital age.
In this post, I provide 10 reasons why the Third Party Doctrine should be overruled. Before doing so, here’s some background.
Carpenter [6th Circuit case on cert to the Supreme Court] involved the investigation of a string of robberies of Radio Shack. The FBI obtained cell phone records of the defendants pursuant to the Stored Communications Act (SCA), which requires “specific and articulable facts” to demonstrate that there are “reasonable grounds to believe” that the records are “relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d). This standard is far short of what the Fourth Amendment would require, which is a search warrant based upon probable cause.
In response to government surveillance or massive data gathering, many people say that there’s nothing to worry about. “I’ve got nothing to hide,” they declare. “The only people who should worry are those who are doing something immoral or illegal.”
The nothing-to-hide argument is ubiquitous. This is why I wrote an essay about it 10 years ago called “I’ve Got Nothing to Hide,” and Other Misunderstandings of Privacy, 44 San Diego Law Review 745 (2007). It was a short law review piece, one that I thought would be read by only a few people. But to my surprise, this essay really resonated with many people, and it received an unusually high number of downloads for a law review essay. I later expanded the ideas in the essay into a book: Nothing to Hide: The False Tradeoff Between Privacy and Security (Yale University Press 2011).
This year is the 10th anniversary of the piece. A lot has happened between then and now. Not too long before I wrote my essay, there were revelations of illegal NSA surveillance. A significant percentage of the public supported the NSA surveillance, and the nothing-to-hide argument was trotted out again and again. This was the climate in which I wrote the essay.
Later on, in 2013, Edward Snowden revealed that the NSA was engaging in extensive surveillance far beyond its legal authority. Snowden declared: “Arguing that you don’t care about the right to privacy because you have nothing to hide is no different than saying you don’t care about free speech because you have nothing to say.” This time, there was a significantly large percentage of the public that didn’t side with the NSA but instead demanded scrutiny and accountability.
Nevertheless, the nothing-to-hide argument is far from vanquished. There will always be a need for citizens to demand accountability and oversight of government surveillance, or else we will gradually slide into a more dystopian world.
Here are a few short excerpts from my nothing-to-hide essay:
Ransomware is on a rampage! Attacks are happening with ever-increasing frequency, and ransomware is evolving and becoming more powerful.
Several major media sites, such as the New York Times, BBC, AOL, and the NFL, were recently infected with malware that directed visitors to sites attempting to install ransomware on their computers.
Ransomware has the potential to attack the Internet of Things. In one instance, a researcher was able to infect a TV with ransomware.
Ransomware is now attacking smart phones.
Last month, one hospital paid $17,000 in ransom when ransomware attacked its computer system. The computer network was down for more than a week, and patients had to be transferred to other hospitals.