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
    RevMike, 28 Nov 2007 @ 10:02pm

    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.

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