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 recently issued a decision in Carpenter v. United States, an important Fourth Amendment case that was eagerly awaited by many. The decision was widely cheered as a breakthrough in Fourth Amendment jurisprudence — hailed as a “landmark privacy case” and a “major victory for digital privacy.” In the NY Times, Adam Liptak referred to Carpenter as a “major statement on privacy in the digital age.”
Although I agree with the outcome of the decision, I ultimately find it to be disappointing. True, the Supreme Court finally took a step forward to bring the Fourth Amendment more in line with the digital age. But this was only a step in the year 2018, when the Court should have walked more than a mile.
Despite the fact that the various opinions in Carpenter total 119 pages, Carpenter only resolves a narrow issue and leaves many open questions. When something is the length of a Tolstoy novel, the plot should advance quite a lot more. The basic holding of the case is that the Fourth Amendment applies when the government “accesses historical cell phone records that provide a comprehensive chronicle of the user’s past movements.” But a lot more was at stake in the case. This was the prime opportunity of the Court to overrule the Third Party Doctrine, under which the Court has held that that there is no reasonable expectation in privacy for information known or exposed to third parties. The Third Party Doctrine was forged in the 1970s in cases involving bank and phone records. In United States v. Miller, 425 U.S. 435 (1976), the Court held that there is no reasonable expectation of privacy in financial records maintained by one’s bank because “the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities.” In Smith v. Maryland, 442 U.S. 735 (1979), the Court concluded that there was no reasonable expectation of privacy when the government obtained a list of phone numbers a person dialed from the phone company because people “know that they must convey numerical information to the phone company” and cannot “harbor any general expectation that the numbers they dial will remain secret.”
As I argued in an earlier post about Carpenter, the Third Party Doctrine is deeply flawed and eviscerates Fourth Amendment protection in today’s digital age where so much of our information is in the hands of third parties. Carpenter would have been the ideal case to get rid of the Third Party Doctrine. Instead, the Supreme Court did what it has often done in recent years — tiptoe weakly like a mouse, nibbling around the edges of issues rather than directly resolving them. Rather than overrule Smith and Miller, the Carpenter Court just stated that these cases don’t apply to cell-site location records: “We decline to extend Smith and Miller to cover these novel circumstances. Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. ” This is a partial victory, as the Third Party Doctrine finally has a stopping point, but there are an endless series of situations involving the Third Party Doctrine, and the Court has provided scant guidance about when the Third Party Doctrine will apply.
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.
This cartoon depicts the potential future of the Internet of Things. As more and more devices are connected to the Internet, including ones implanted in people’s bodies, increasing thought must be given to the privacy and security implications. The speed of technological development is moving at a far greater pace than the speed of policy thinking regarding privacy and security.
How will the security of new devices be regulated? The market doesn’t seem to be adequately addressing the security of the Internet of Things. Bad security in devices has externalities beyond the users, as devices can be used as part of botnets to attack other targets.
How will privacy be designed into devices? How will notice and choice work? When privacy is “baked in” to a device, do the engineers have a comprehensive understanding of privacy? How will consumers be able to understand and respond to these design choices?
Should there be special considerations for medical devices or any device that is implantable in a person?
We still await satisfactory answers to these questions . . . but the expansion of the Internet of Things isn’t waiting.
Here’s an earlier cartoon I created regarding the Internet of Things:
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:
A while ago, I wrote about a case involving a member of the St. Louis Cardinals baseball team staff who improperly accessed a database of the Houston Astros. There is now an epilogue to report in the case. The individual who engaged in the illegal access — a scouting director named Chris Correa — was fired by the Cardinals, imprisoned for 46 months, and banned permanently from baseball. The Cardinals were fined $2 million by Major League Baseball Commissioner Rob Manfred, and they must forfeit their first two picks in the draft to the Houston Astros.
According to an article about the incident in the St. Louis Post-Dispatch: “As outlined in court documents, the U.S. attorney illustrated how Correa hacked Houston’s internal database, ‘Ground Control,’ 48 times during a 2½-year period. He viewed scouting reports, private medical reviews and other proprietary information. The government argued that Correa may have sought to determine if Houston borrowed the Cardinals’ data or approach, but the information he accessed was ‘keenly focused on information that coincided with the work he was doing for the Cardinals.'”
As I wrote in my piece about the case, there are several lessons to be learned. One lesson is that it is a myth that hacking and computer crime must be hi-tech. Here, Correa’s hacking was nothing sophisticated — he just used another person’s password. The person had previously worked for the Cardinals, and when he went to the Astros, he kept using the same password. In my piece, I discussed other lessons from this incident, such as the importance of teaching people good password practices as well as teaching people that just because they have access to information doesn’t make it legal to view the information. The Cardinals organization appears to have learned from the incident, as the “employee manual has been updated to illustrate what is illegal activity online,” and the organization is using two-factor authentication to protect its own sensitive data. The article doesn’t say whether the Astros also stepped up their security awareness training by teaching employees not to reuse their old passwords from another team.
A dramatic legal battle is taking place that will have dramatic implications for the future of technology, privacy, security, and the extent of government power. The FBI obtained an order from a magistrate judge to force Apple to develop software to help the FBI break into an encrypted iPhone.
The passing of Justice Antonin Scalia has brought a wave of speculation about current and future U.S. Supreme Court cases. One area where there might be a significant impact will be the 4th Amendment, which provides the primary constitutional protection against government surveillance and information gathering. A new justice could usher in a dramatic expansion in 4th Amendment protections against government surveillance.
Last year, the death of the US-EU Safe Harbor Arrangement sent waves of shock and despair to the approximately 4500 companies that used this mechanism to transfer personal data from the US to the EU. But a new day has dawned.