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 @ 8:04pm

    Re: Privacy

    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

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