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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Filed Under: fourth amendment, gps, mobile phone tracking, privacy


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  1. identicon
    Barrenwaste, 28 Nov 2007 @ 10:54pm

    Re: RevMike

    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.

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