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MengYingLeeFirstPaper 4 - 12 May 2022 - Main.EbenMoglen
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| | | In 2020, the Washington Post revealed that a data broker company shared billions of phone location records with the District of Columbia government for coronavirus tracking. It obviously shows that during the pandemic, the data brokers are exploiting the situation to sell people’s private information to the government. | |
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< | The Fourth Amendment protects against “unreasonable searches and seizures.” Though often applied in the criminal procedure context, in Ontario v. Quon, 560 U. S. 746, 755 (2010), the U.S. Supreme Court has recognized that “the Fourth Amendment's protection extends beyond the sphere of criminal investigations ”. In Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523, 534 (1967), the court opined that “administrative search”, such as housing inspections, must comply with the Fourth Amendment . In Katz v. United States, 389 U.S. 347 (1967), court also recognized electronic surveillance as “search” under the Fourth Amendment. Therefore, it is possible that the digital contact tracing or surveillance be analyzed under the Fourth Amendment context, if the government requires mandatory reporting of cell site location information, or buying the data from brokers. | >
> | The Fourth Amendment protects against “unreasonable searches and seizures.” Though often applied in the criminal procedure context, in Ontario v. Quon, 560 U. S. 746, 755 (2010), the U.S. Supreme Court has recognized that “the Fourth Amendment's protection extends beyond the sphere of criminal investigations ”. In Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523, 534 (1967), the court opined that “administrative search”, such as housing inspections, must comply with the Fourth Amendment .
Yes, and hence my point that no one is compelled to use tracking software. Your Texas paranoids may have some facts to prove, but I don't possess a smartphone, and until that's unlawful we can say that the absence of a constitutional level of consent is going to be hard to prove.
The law of administrative searches in the Supreme Court has changed somewhat since 1967. You need to look a little more comprehensively than Googling will do for you.
In Katz v. United States, 389 U.S. 347 (1967), court also recognized electronic surveillance as “search” under the Fourth Amendment. Therefore, it is possible that the digital contact tracing or surveillance be analyzed under the Fourth Amendment context, if the government requires mandatory reporting of cell site location information, or buying the data from brokers.
Those two factual settings are obviously nowhere near. How do you show that the latter raises any 4th Amendment question?
| | | In 2018, the U.S. Supreme Court held that individuals have a reasonable expectation of privacy in their cell-site location information. In Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018), the court points out that “much like GPS tracking of a vehicle, cell phone location information is detailed, encyclopedic, and effortlessly compiled…”, and “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.” An individual’s location history reveals much about who they are. Although in Carpenter v. United States, the court only addressed the issue of the CLSI tracking method, other means of location monitoring, such as GPS cell phone tracking or bluetooth-enabled tracing, also cause the same danger of privacy invasion mentioned in this case. | |
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> | But, as I pointed out
last draft, there would be time to argue about warrantless access
to such information if there were any cases of warrantless access.
There aren't any. Is the point of this essay to conclude without
facts that there are no circumstances under which warrantless
access would be constitutional? (Your purchase of data case is then relevant.) What validity is there to the argument against a straw man proclaiming that all warrantless access is constitutionally unproblematic?
Legal clarity, as I said last time, was the key to improvement. This draft gets about halfway there.
| | | Furthermore, in Commonwealth v. Almonor, 120 N.E.3d 1183, 1195 (Mass. 2019), the court also acknowledged that “manipulating our phones for the purpose of identifying and tracking our personal location presents an even greater intrusion”, and therefore forbade warrantless access to real-time cellphone location data.
Therefore, if the government requires mandatory reporting of cell site location information, or buying the data from brokers, it is also within the Fourth Amendment’s ambit and the same protection shall also be applied. |
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MengYingLeeFirstPaper 3 - 28 Apr 2022 - Main.MengYingLee
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Digital Contact Tracing Against COVID-19 | |
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< | -- By MengYingLee - 10 Mar 2022 | >
> | -- By MengYingLee - 10 Mar 2022 (revised 28 April 2022) | | |
Introduction | |
<
< | During 2020, as COVID-19 has spread across the globe, several countries like China, Israel, Singapore and South Korea have employed digital surveillance tools (such as drones, CCTV cameras, cell phone location data, video camera footage and credit card information) to track and limit the virus’s transmission. Software developers like Apple and Google also launched a solution that includes application programming interfaces (APIs) and operating system-level technology to assist in enabling contact tracing. In the United States, Alabama, North Dakota and South Carolina are the first three U.S. states that sign on the software released by Apple and Google that will allow public health agencies around the world to build their own apps to track who may have been exposed to COVID-19 using bluetooth signals.
In addition, Wall Street Journal reported in 2020 that the U.S. government have started to receive data analysis about the presence and movement of people in certain areas of geographic interest drawn from cellphone data provided by the mobile advertising industry.
As COVID-19 spreading at an unprecedented rate, reliance on the traditional tracking model of voluntary interviews becomes impracticable. Digital contact tracing applications and techniques have emerged as a means to augment traditional manual contact tracing. The use of these techniques also expose conflict between data privacy and public health, raising constitutional concerns: Would digital contact tracing programs violate the Fourth Amendment? | >
> | During 2020, as COVID-19 has spread across the globe, several countries have employed digital surveillance tools (such as cell phone location data) to track and limit the virus’s transmission. Software developers like Apple and Google also launched a solution that includes application programming interfaces (APIs) and operating system-level technology to assist in enabling contact tracing. In the United States, several states signed on the software released by Apple and Google that will allow public health agencies around the world to build their own apps to track who may have been exposed to COVID-19 using bluetooth signals. In addition, Wall Street Journal reported in 2020 that the U.S. government have started to receive data analysis about the presence and movement of people in certain areas of geographic interest drawn from cellphone data provided by the mobile advertising industry. | | | | |
>
> | Besides the contact tracing, quarantine surveillance is also another issue during the pandemic. Hawaii once considered sweeping use of GPS-enabled ankle bracelets or smartphone tracking apps to enforce stay-at-home orders given to arriving air passengers. A West Virginia judge has approved strapping ankle monitors to people who test positive but refuse to quarantine. | | | | |
<
< | Fourth Amendment in the Pandemic Context: Reasonable Expectation of Privacy
The Fourth Amendment protects people from unreasonable searches of places or seizures of persons or objects where that person has a “reasonable expectation of privacy”. In Katz v. United States, 389 U.S. 347 (1967), the United States Supreme Court developed a two-part test for determining whether a person has a “reasonable expectation of privacy”: (1) an individual has exhibited an actual (subjective) expectation of privacy; and (2) the expectation is one that society is prepared to recognize as reasonable. If both of these requirements are met, generally, the government may not search the person’s private space or seize the person’s belongings without a warrant. When applying the Katz test to digital contact tracing programs, the “third-party” doctrine may bypass the limitation. Under the third-party doctrine, when someone voluntarily surrenders information to a third party, he/she also forfeits any reasonable expectation of privacy in that information. Therefore, if the government obtain an individual’s contact tracing information from a cell phone carrier, there may be no violation of the Fourth Amendment based on the third-party doctrine. Nevertheless, in Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018), the court distinguish the cell-site location information (CSLI) from the data in the third-party line of cases, declining to extend the third-party doctrine to CSLI. In Carpenter v. United States, the court points out that “much like GPS tracking of a vehicle, cell phone location information is detailed, encyclopedic, and effortlessly compiled…”, and “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.”
An individual’s location history reveals much about who they are. Location history can show people’s interests, activities, political inclination, etc. Although in Carpenter v. United States, the court only addressed the issue of the CLSI tracking method, other means of location monitoring, such as GPS cell phone tracking or bluetooth-enabled tracing, also cause the same danger of privacy invasion mentioned in Carpenter v. United States. Therefore, it is also within the Fourth Amendment’s ambit and the same protection shall also be applied. | | | | |
<
< | Fourth Amendment in the Pandemic Context: Special Needs Exception
The digital contact tracing and surveillance program is also likely to be evaluated under the Fourth Amendment’s “special needs exception.” The exception applies when: (1) the government conducts programmatic searches that are primarily aimed at advancing some special need other than criminal law enforcement; and (2) the government’s search program is reasonable given the balance of public and private interests.
In the cases which the special needs exception is adopted, there seems to be distinguishing factors to decide what kind of people is surveilled, and such factors may legitimize the reduction of expectation of privacy. Nevertheless, the digital contact tracing and surveillance program applies to anyone who is or could become infected, which is, basically the general public. | >
> | The Issue of “Consent” of Digital Contact Tracing
In the U.S., citizens can choose whether to download the tracing apps. When they choose to opt in by activating its use, it is voluntary sharing of information with the government. Nevertheless, when using contact tracing apps or activating the tracking functions, sometimes it may be an nuanced choice between opt-in or mandatory. For example, in August 2020, a group of Texas business owners, former state legislators, and organizations filed a suit in Texas, claiming the use of contact tracing to track the spread of COVID-19 violate their Fourth amendment rights . The plaintiffs contend that “smart phones are reportedly being reprogrammed to facilitate the unconsented tracking of Texans, compiling information in ways that invade the privacy of Plaintiffs and other Texans.” If the claim is true, the actual implementation of contact tracing program may not be that “voluntary.” | | | | |
<
< | In addition, the application of this exception seems to be disputable. In Ferguson v. City of Charleston, 532 U.S. 67 (2001), the court opined that “public health” can be
a ground for justifying “special needs” searches, but if the real purpose of a drug testing program is to advance law enforcement goals, the special needs exception does not apply. | >
> | In addition, when the apps bundle different functions altogether (e.g., pandemic trend, local pandemic statistics, proximity detection, location tracking), it is sometimes hard for users to provide individual consent to different functionalities. Without valid consents, the legality of data collection remains questionable. | | | | |
<
< | Even if government could prove that the special need exception applies, courts still have to balance the intrusiveness of the surveillance versus the public benefit. This should be a “context-specific” investigation. The surveillance is, undoubtedly, highly intrusive. Therefore, the government has to explain how such intrusion is justified by greater public benefit. | >
> | Digital Surveillance & U.S. Regulation
Contact tracing data collected by private entities would be provided to public health authorities. Some states have laws that require government entities to
obtain a search warrant before accessing data on an electronic device (e.g, Electronic Communications Privacy Act). Nevertheless, unlike the European Union, the United States lacks a comprehensive and effective data privacy law. In fact, there is no law clearly regulates how that all data collected through tracing apps must be stored, used, and disposed of when no longer needed. Without such protections, it is risky that this data may be misused. | | | | |
<
< | Conclusion
In the name of dealing with COVID-19 pandemic, some countries already have required their citizens to download location-tracking apps onto their phones. These apps are used to surveil the general public, or even restrict their movements.
History shows that when public emergencies arise, governments have the chances to expand their powers and people are more willing to accept it. We must make sure that all of the responses to the public emergencies are proportionate and necessary. The measures taken now may outlive the pandemic, and may have a significant impact on what the surveillance system would be even after the pandemic ends. | >
> | In 2020, the Washington Post revealed that a data broker company shared billions of phone location records with the District of Columbia government for coronavirus tracking. It obviously shows that during the pandemic, the data brokers are exploiting the situation to sell people’s private information to the government.
The Fourth Amendment protects against “unreasonable searches and seizures.” Though often applied in the criminal procedure context, in Ontario v. Quon, 560 U. S. 746, 755 (2010), the U.S. Supreme Court has recognized that “the Fourth Amendment's protection extends beyond the sphere of criminal investigations ”. In Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523, 534 (1967), the court opined that “administrative search”, such as housing inspections, must comply with the Fourth Amendment . In Katz v. United States, 389 U.S. 347 (1967), court also recognized electronic surveillance as “search” under the Fourth Amendment. Therefore, it is possible that the digital contact tracing or surveillance be analyzed under the Fourth Amendment context, if the government requires mandatory reporting of cell site location information, or buying the data from brokers.
In 2018, the U.S. Supreme Court held that individuals have a reasonable expectation of privacy in their cell-site location information. In Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018), the court points out that “much like GPS tracking of a vehicle, cell phone location information is detailed, encyclopedic, and effortlessly compiled…”, and “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.” An individual’s location history reveals much about who they are. Although in Carpenter v. United States, the court only addressed the issue of the CLSI tracking method, other means of location monitoring, such as GPS cell phone tracking or bluetooth-enabled tracing, also cause the same danger of privacy invasion mentioned in this case.
Furthermore, in Commonwealth v. Almonor, 120 N.E.3d 1183, 1195 (Mass. 2019), the court also acknowledged that “manipulating our phones for the purpose of identifying and tracking our personal location presents an even greater intrusion”, and therefore forbade warrantless access to real-time cellphone location data. | | | | |
>
> | Therefore, if the government requires mandatory reporting of cell site location information, or buying the data from brokers, it is also within the Fourth Amendment’s ambit and the same protection shall also be applied.
Conclusion
In the name of dealing with COVID-19 pandemic, some countries already have required their citizens to download location-tracking apps onto their phones. These apps are used to surveil the general public, or even restrict their movements. History shows that when public emergencies arise, governments have the chances to expand their powers and people are more willing to accept it. We must make sure that all of the responses to the public emergencies are proportionate and necessary. The measures taken now may outlive the pandemic, and may have a significant impact on what the surveillance system would be even after the pandemic ends. | | |
I don't understand the point of the Fourth Amendment analysis. No one in the US was required to use any such application, nor were there any criminal investigations or offenses involved. Use of information gained in the course of operating such applications for prosecutorial purposes without issuance of a warrant would raise a constitutional question, but there are no such cases to be found. |
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MengYingLeeFirstPaper 2 - 28 Mar 2022 - Main.EbenMoglen
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< | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | Digital Contact Tracing Against COVID-19 | | | History shows that when public emergencies arise, governments have the chances to expand their powers and people are more willing to accept it. We must make sure that all of the responses to the public emergencies are proportionate and necessary. The measures taken now may outlive the pandemic, and may have a significant impact on what the surveillance system would be even after the pandemic ends. | |
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> |
I don't understand the point of the Fourth Amendment analysis. No one in the US was required to use any such application, nor were there any criminal investigations or offenses involved. Use of information gained in the course of operating such applications for prosecutorial purposes without issuance of a warrant would raise a constitutional question, but there are no such cases to be found.
So improvement seems to me to depend on clearing up the legal confusion. What the subject should be once that's done I leave to you, though my comments on SophiaHanFirstPaper might also be relevant.
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MengYingLeeFirstPaper 1 - 10 Mar 2022 - Main.MengYingLee
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
Digital Contact Tracing Against COVID-19
-- By MengYingLee - 10 Mar 2022
Introduction
During 2020, as COVID-19 has spread across the globe, several countries like China, Israel, Singapore and South Korea have employed digital surveillance tools (such as drones, CCTV cameras, cell phone location data, video camera footage and credit card information) to track and limit the virus’s transmission. Software developers like Apple and Google also launched a solution that includes application programming interfaces (APIs) and operating system-level technology to assist in enabling contact tracing. In the United States, Alabama, North Dakota and South Carolina are the first three U.S. states that sign on the software released by Apple and Google that will allow public health agencies around the world to build their own apps to track who may have been exposed to COVID-19 using bluetooth signals.
In addition, Wall Street Journal reported in 2020 that the U.S. government have started to receive data analysis about the presence and movement of people in certain areas of geographic interest drawn from cellphone data provided by the mobile advertising industry.
As COVID-19 spreading at an unprecedented rate, reliance on the traditional tracking model of voluntary interviews becomes impracticable. Digital contact tracing applications and techniques have emerged as a means to augment traditional manual contact tracing. The use of these techniques also expose conflict between data privacy and public health, raising constitutional concerns: Would digital contact tracing programs violate the Fourth Amendment?
Fourth Amendment in the Pandemic Context: Reasonable Expectation of Privacy
The Fourth Amendment protects people from unreasonable searches of places or seizures of persons or objects where that person has a “reasonable expectation of privacy”. In Katz v. United States, 389 U.S. 347 (1967), the United States Supreme Court developed a two-part test for determining whether a person has a “reasonable expectation of privacy”: (1) an individual has exhibited an actual (subjective) expectation of privacy; and (2) the expectation is one that society is prepared to recognize as reasonable. If both of these requirements are met, generally, the government may not search the person’s private space or seize the person’s belongings without a warrant. When applying the Katz test to digital contact tracing programs, the “third-party” doctrine may bypass the limitation. Under the third-party doctrine, when someone voluntarily surrenders information to a third party, he/she also forfeits any reasonable expectation of privacy in that information. Therefore, if the government obtain an individual’s contact tracing information from a cell phone carrier, there may be no violation of the Fourth Amendment based on the third-party doctrine. Nevertheless, in Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018), the court distinguish the cell-site location information (CSLI) from the data in the third-party line of cases, declining to extend the third-party doctrine to CSLI. In Carpenter v. United States, the court points out that “much like GPS tracking of a vehicle, cell phone location information is detailed, encyclopedic, and effortlessly compiled…”, and “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.”
An individual’s location history reveals much about who they are. Location history can show people’s interests, activities, political inclination, etc. Although in Carpenter v. United States, the court only addressed the issue of the CLSI tracking method, other means of location monitoring, such as GPS cell phone tracking or bluetooth-enabled tracing, also cause the same danger of privacy invasion mentioned in Carpenter v. United States. Therefore, it is also within the Fourth Amendment’s ambit and the same protection shall also be applied.
Fourth Amendment in the Pandemic Context: Special Needs Exception
The digital contact tracing and surveillance program is also likely to be evaluated under the Fourth Amendment’s “special needs exception.” The exception applies when: (1) the government conducts programmatic searches that are primarily aimed at advancing some special need other than criminal law enforcement; and (2) the government’s search program is reasonable given the balance of public and private interests.
In the cases which the special needs exception is adopted, there seems to be distinguishing factors to decide what kind of people is surveilled, and such factors may legitimize the reduction of expectation of privacy. Nevertheless, the digital contact tracing and surveillance program applies to anyone who is or could become infected, which is, basically the general public.
In addition, the application of this exception seems to be disputable. In Ferguson v. City of Charleston, 532 U.S. 67 (2001), the court opined that “public health” can be
a ground for justifying “special needs” searches, but if the real purpose of a drug testing program is to advance law enforcement goals, the special needs exception does not apply.
Even if government could prove that the special need exception applies, courts still have to balance the intrusiveness of the surveillance versus the public benefit. This should be a “context-specific” investigation. The surveillance is, undoubtedly, highly intrusive. Therefore, the government has to explain how such intrusion is justified by greater public benefit.
Conclusion
In the name of dealing with COVID-19 pandemic, some countries already have required their citizens to download location-tracking apps onto their phones. These apps are used to surveil the general public, or even restrict their movements.
History shows that when public emergencies arise, governments have the chances to expand their powers and people are more willing to accept it. We must make sure that all of the responses to the public emergencies are proportionate and necessary. The measures taken now may outlive the pandemic, and may have a significant impact on what the surveillance system would be even after the pandemic ends.
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