The Fourth Amendment Two-Step

from the where-your-privacy-has-gone dept

Tom Lee has already weighed in with an excellent post on the news that law enforcement officials are often able to turn cell phones into real-time tracking devices without having to make the traditional showing of probable cause required for a search warrant. But it may be worth lingering a bit over the tortuous legal history that is being used to justify a form of snooping that is, intuitively, almost as intrusive as a conventional physical search. The problem is a series of precedents that, as legal scholar Richard Posner has observed, enable the government to do a two-step end run around the Fourth Amendment. In the 1974 case California Bankers Association v. Schulz, the Supreme Court ruled that the Bank Secrecy Act, which required financial institutions to collect certain kinds of information from customers, did not run afoul of the Fourth Amendment's privacy protections. (Similarly, Enhanced 911 rules implemented in 1998 required telecom providers to make their networks capable of pinpointing the locations of cell users for the convenience of 911 operators.) The Court reasoned that "the mere maintenance by the bank of records without any requirement that they be disclosed to the Government" did not constitute an "illegal search and seizure." But two years later, in U.S. v. Miller, the Court determined that individuals lost their "expectation of privacy" in such information once it had been turned over to a third party, such as a bank. And businesses such as banks, unlike individuals, could not claim Fourth Amendment privacy interests in their records.

That brings us to 1979's Smith v. Maryland, in which the Court determined that no "search" was conducted, for Fourth Amendment purposes, when police sought to obtain from telephone companies a list of the numbers dialed from a particular telephone. The Court's reasoning was two pronged: In part, the justices relied upon the "third party" rationale of Miller. But they also noted the ways that such information gathering was distinct from, and less intrusive than, eavesdropping on the calls themselves: "Neither the purport of any communication between the caller and the recipient of the call, their identities, nor whether the call was even completed is disclosed by pen registers."

Different jurisdictions have differed on how this logic applies in the case of cell tracking, where there's the added hurdle of language in the Communications Assistance for Law Enforcement Act that would appear to forbid using a mobile phone as a GPS device without a full-fledged search warrant. It seems likely that, at least in the near term, judges will rely on such statutory constraints to check such tracking. But it also looks like a good reason for the courts to revisit this whole line of Fourth Amendment jurisprudence, and reconsider whether, when so much data about us is stored in a variety of "third party" databases, it makes sense to presume citizens have no reasonable expectation of privacy in such information, even when the "third party" has pledged not to share it.

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Comments on “The Fourth Amendment Two-Step”

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Barrenwaste (profile) says:


Does it say privacy? No. What it does say, and I quote

“The right of the people to be secure in thier persons, houses, papers, and effects….”

What does that mean? We have to look at the definition of secure, especially as used during the time frame of when the amendment was written. Well, the technical definition, as used by the time, states secure as being protected from loss(1). That would mean that we have the right to conceal or hide our posessions, making them private, or unavailable to the commons. A more update definition has it as, “A condition that results from the establishment and maintenance of protective measures that ensure a state of inviolability from hostile acts or influences.”(2)

“…, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation….”

That is worded complex, as most things were at the time, but simply broken down means no warrent no stuff.

“…, and particularly describing the place to be searched, and the persons or things to be seized.”

That means that the warrent has to specifically state who, what, and where. If they want papers they have to state that they want papers and where these papers are. Now, since paper work is done electronicaly nowdays that should mean that electronic data falls under this protection. It is, afterall, personal property no matter where it is kept.

The Fourth Amendment is a privacy law. It was always meant as a privacy law. The US has no privacy law, ergo the US government is acting in defiance of the Constitution. I can’t see any other conclusion after breaking down the amendment, can you?

*1 as defined by websters dictionary
*2 as defined by wickpedia

Tony says:

RE: Privacy by Lawrence D'Oliveiro

Wow! That’s incredibly ignorant and short sighted. Of course there’s not any one specific law that says “You’re guranteed privacy”, but it’s quite easy to see that the founders clearly wanted us to be free from the prying eyes of the government which is implying privacy. Try reading the constitution. AND, while Scott McNealy may be a perfectly good tech-CEO, he’s not a constitutional scholar and I’m fairly certain you’re quoting him out of context.

Amendment IV
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.

Anonymous Coward says:

“The US has no privacy law.”
The constitution also doesn’t forbid slavery and a shitload of other things. If you use the argument of “The constitution doesn’t grant it and therefore it should not exist”, you cannot selectively pick and choose which cases you use that argument in. To do so is nothing less than hypocrisy.

RevMike says:

Fully consistent with original privacy rules

If you think about it clearly and critically, you can see that the current state of the law is fully consistent with the original intention of the fourth amendment.

In 1800, you had an expectation of privacy in your home. You had an expectation that the contents of your correspondence were private, since they were in the sealed envelope. A warrant is needed to search your home or read your mail. You have an expectation of privacy because you have taken steps to make these things private. You have put stuff in an envelope, you have closed your curtains.

On the other hand, when you go out in public to travel, you don’t reasonably have an expectation of privacy. You are out in public and can be seen. Likewise what you write on the outside of an envelope can be seen by lots of people. You don’t have any expectation of privacy because you understand that these facts can be seen by lots of people.

Fast forward a hundred years to the advent of the telephone. The numbers you call, and the numbers that call you, are analogous to the address on the envelope. The conversation you have is analogous to the contents of the envelope. The phone numbers are available without a warrant and the conversation itself require a warrant. Your privacy rights have neither increased nor decreased, but have simply been transferred to a new medium.

Fast forward another hundred years and tracking of location by mobile phone system is now feasible. You didn’t have an expectation of privacy when you travel, since anyone can see you. Just because the means of tracking you have changed, doesn’t mean that your rights should increase or decrease. Your movements are could be seen by a law enforcement officer following you without requiring a warrant, so there is no need for a warrant to follow you electronically.

I suspect that as the law settles down around email and IM communication, we will likewise discover that the contents of that communication is protected, but the fact that we exchange IM or email with another party will be considered to be “on the outside of the envelope” and can be available without warrant.

Barrenwaste (profile) says:


Well written, and well reasoned. However, I believe it fails on certain key points.

The amendment does not mention merely privacy at home, nor do I believe that was the expectation. It specifically mentions person, house, papers, and effects. I believe that was done on purpose. Take, for example, your office at work. You take steps there to secure any personal property. In many cases the entire building and all it’s contents are personal property. That was definately meant to be included, but does not fit your model. No, it states them seperately because it does not matter where your person, house, papers, and or effects are, they are still protected by the Amendment. This is because simply becoming a citizen and agreeing to abide by the constitution is taking steps to secure your person, house, papers, and effects.

The amendment also specifically states papers, not mail. Mail would fall under this, of course, as it was seperated even back then. However, it was not meant to only include mail and makes no mention of the adress being other than part of the protected papers. The entirety of the constitution is very precisely worded, I cannot believe they would forget to say that who your papers are from or to is exempt from this protection. Similarily, as they are just extensions of your mail, should not your phone number and IMs be protected by this?

And finally, intended or not (our ancestors were anything but all seeing) taking information in such a way does violate the intent of the amendment. Now, I realize that it could be argued that I don’t know the true intent because I was not there for the amendment’s creation. Still, having read, and disected the amendment it has become clear that where you are within the country doesn’t matter in regards to the protection granted by this amendment. Just because I can see you pay with a credit card does not give me the right to monitor your card number. It is an action taken in a public place in full view of others and yet still personal.

Anonymous Coward says:

Re: RevMike

Your right, it mentions “person, house, papers, and effects.”

person = yourself, they can’t empty your pockets / briefcase unless you let them or they have probable cause

house = your domicile or domiciles. Apartment, wherever you call home and own. Office wouldn’t count, except unless your the owner possibly but I doubt it as its a business and this is dealing with YOUR rights

papers = no one seems to be arguing about this, and the courts have analogued phone calls to this as a previous poster has already stated. IMs and E-Mail are probably the same. They can look at the headers but not the actual packet. They get to see the outside, not the in.

effects = your stuff. Belongings. Thats it.

It says absolutely nothing about your ‘right to privacy’ if you go out to the mall. Unsettling as though it may be that Big Brother can track you wherever you go, it seems to be constitutional to me and I can see several different ways (the least of which is the ease for 911 operators to find you) it could be useful for law enforcement.

Worrying about what The Gov is going to do to you doesn’t mean you should try to kill a potentially great thing. Fix the corruption, don’t cripple new strengths.

Supposedly thats why we don’t have a permanent Head of State, though sometimes I wish the new Presidents would stop undermining EVERYTHING the previous administration did just cause it was a different party. I kinda liked my country not being in debt before Bush came along and put us in the negative trillions for a yet to be seen reason.

Anonymous Coward says:

"The constitution also doesn't forbid slavery.

Amendment XIII
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

Lawrence D'Oliveiro says:

Still No US Privacy Law

And everyone responding to my post completely overlooks the fact that the Fourth Amendment only applies to the operations of Government agents, not those of private companies or other private individuals.

Protecting your privacy only against the Government is no better than not protecting your privacy at all. That’s why the US has no privacy law.

Bruce A. Knack (profile) says:

Time for a new amendment?

Perhaps it is time for a new amendment?

Reading these comments makes it clear that there is a division of opinion of the “privacy” afforded by the constitution thus far. One of the basic elements of the constitution is that it is a “living” document which may be amended as required thru time. In this case, I believe it may be time (perhaps well past time) that a specific privacy amendment be added.

This example is but one of many that hi-lights a sea change in our innate ability to maintain privacy (or anonymity) in our daily lives. While it might be possible for someone to be seen walking about hundreds of years ago, the actual chance of being “seen” would be very low unless one was the subject of an ongoing investigation. A reasonable person could thus conclude that their mundane comings and goings were private even if they interacted with folks along the way.

Today, the surveillance apparatus that has grown up all around us leads a reasonable person to realize that nothing they do in public can be assumed to be private. Information about one’s daily comings and goings is not just available after one is the focus of an investigation. Indeed, we all live in an Orwellian microscope where the entirety of our public conduct is retroactively available to the authorities on a whim.

I submit that this is the essence of a totalitarian state.

I can completely understand the benefits we all get when “bad people” can be brought to justice due to our ability to track their actions easily. Nonetheless, this ability should be specifically controlled and managed by legislation to ensure that the government may not apply it arbitrarily or capriciously.

In short, I’m quite sure it is not possible to have liberty without first having privacy.

Barrenwaste says:


Where does it state that the restraints are only applicable to the government? It doesn’t. That means you are protected from all.

It doesn’t say privacy, but when analyzed that’s what it means. It doesn’t say in public, but then it is specifically worded to include more than just homes and home life. It doesn’t say protection from all, but then it does say that they only way it can be circumvented is by warrant. Seems pretty clear to me.

Barrenwaste (profile) says:


You are correct, it doesn’t mention your privacy at the mall. What it does say is that you and all of your posessions are protected under the law. No qualifier. If it were meant to only be protection while you are in your home, it would say that. There was distinction between the two at the time of creation, so it was an issue then as well as now. They didn’t quilfy it, therefore the protection offered is absolute regardless of where you find yourself in the country. The statement of probable cause is vague enough. If law enforcers cannot find “probable cause” then perhaps they are looking in the wrong places and at the wrong people. Or to put it more simply, yet acerbicly, if they can’t find probable cause then they are either lazy or wrong.

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