Section I - Intro

The boom in smartphone usage has become so potent that it would be safe to say they have become sort of an extra appendage. The convenience of smartphones along with instantaneous communication is its ‘ease of use’ and streamlining of all our tasks. This intimacy comingled with the personal data we store on our phones goes hand in hand with the concept of privacy and the Fourth Amendment. I’d like to explore how data storing and collection differs between Apple and Google’s operating systems, and how the Fourth Amendment appears to offer protection to users.

Section II - Apple vs. Google

The Fourth Amendment plays a role here when it comes to law enforcement seeking access when it comes to data. A prolific case, Riley v. California (2014), is one that made a distinction between non-smartphones and smartphones, establishing that the latter hold a reasonable expectation of privacy as it is defined in the Fourth Amendment. Ultimately, the requirement of a warrant for law enforcement to access the contents of our smartphones, has become a safeguard against arbitrary data collection. As we are all familiar Apple, has employed many measures to shield user data and has even used this fact as a key marketing tactic in the race between the iPhone and Android. The features include encryption that essentially makes data impenetrable without a specific key. Apple also uses biometric authentication like Face ID (and Touch ID on older models) that uses your physical characteristics for access. Of course, with these measures, the collection of biometric data is a necessary evil. While Apple's security features seek to franchise users with control of their own data, and the option to decline collection of said data by way of third-party applications, this can pose challenges for law enforcement investigations. Google and Apple approach user privacy in different ways. Apple emphasizes privacy, and because it acts as both a hardware and software integrator, it allows for a more secure lock on the connection between device and software. On the other hand, Google, which leans more on the side of an advertising company, relies on data. This distinction inspires skepticism of user privacy, as it is almost in diametric opposition to Apple’s security measures. Google’s services usually involve both the collection and analysis of user data, and while its implemented privacy settings and transparency reports, at the crux, Google’s model necessarily uses user data for targeted advertising.

Section III - App Security

In the context of smartphones, the Fourth Amendment's protection against unreasonable searches and seizures becomes a nuanced issue. Courts have grappled with the question of whether individuals maintain a reasonable expectation of privacy concerning the extensive collection of personal data on their devices. One key thing to think about when it comes to data protection is the concept of voluntary disclosure. The issue is when users willingly sign off access to data with third-party developers when they use their phones, like location data, app usage, and search history. Apps are ubiquitous in today’s day and age, where often there’s an app for everything, down to minute tasks like calling a tip at a restaurant. The issue with apps, regardless of whether you decide to access the service via a website or pro-privacy browsers, many companies block access to services behind an account creation guise. It can feel like companies are holding core functionality hostage to pressure users into signing up for an account. Subsequent account creation often leads to unwanted emails or marketing messages, where companies may see your contact information as an opportunity to promote other services or products, which can be a nuisance. The company dictates how your data is used and secured, and you may have limited control over targeted advertising or data deletion. Service providers' privacy policies can be lengthy and complex, making it difficult to understand exactly how your data is being used. The lack of transparency can be a major concern for users who value their privacy. While privacy tools can help mitigate some risks, such as blocking tracking cookies or masking your IP address, they can't eliminate them entirely.

Voluntarily sharing of information that users typically skip past and press “allow” just to get through the hoops, much like the extensive licensing and terms of agreements associated with digital purchases, diminishes the expectation of privacy under the Fourth Amendment. Some courts have leaned toward this perspective, emphasizing that users are aware of and consent to the data collection practices through terms of service agreements. With the rapidly evolving technology of smartphones and excessive sharing of our lives on the internet, stronger privacy protections might necessitate heightened Fourth Amendment scrutiny in Courts – the argument being that users might not fully comprehend the extent of data collection or the potential downstream consequences when consenting to terms of service. Additionally, as smartphones have become integral to daily life, individuals may need a more comprehensive expectation of privacy in relation to their digital footprint and sensitive information.

But how do Apple and Google fit into this?

Apple and Google have contributed to lack of user data privacy with apps, given that they provide sprawling platforms like the Apple Store and Google Play Store. This definitely provides a convenient and seemingly secure way to download apps. However, this convenience can come at a cost. While they curate app selections, they also grant developers a lot of freedom in how they build their apps. This prioritizes innovation, but can also mean looser rules on data collection. The problem is, users are then left on their own to navigate complex and hidden privacy settings within each app. This lack of transparency makes it hard to understand what data is being collected and how it's used. Again, there are ways to circumvent the necessity of downloading apps, however how far will the average user go to actually protect their data? Can we expect the average user to effectively use a FreedomBox? instead of downloading an app? Currently there are approximately 6.84 billion in use globally. Isn't the point of smartphones a ubiquitous method of making life more convenient and autonomous? The goal isn't to expect corporate entities to do the work of maintaining our liberties, rather, we should expect that the government would regulate the erroneous and sometimes deceptive use of data because the right to privacy should be an enumerated one. For example, Section 5 of the FTC Act acts as a broad shield for consumers' informational privacy. It prohibits "unfair or deceptive acts or practices in or affecting commerce" (15 U.S.C. § 45(a)). This includes situations where companies collect or share personal data in ways that are considered unfair or deceptive. There are limits to this Act, in that it doesn't give consumers a private right of action, and it begs a broader question as to why with the evolving landscape of technology, the Constitution hasn't been amended to include an explicit right to data privacy -- frameworks like the Fourth Amendment and aforementioned FTC Act only providing a peripheral protection. Regardless, it should be a priority for the government to more diligently protect user data, and implement regulations that lend themselves to monitoring the collection and dissemination of data, and increasing transparency for users. As two of the biggest platforms for enabling collection, Apple and Google's marketplaces should be the target of measures like data minimization and granular/individualized user consent in a way that strikes a balance between the need for privacy and the inevitability of innovation.

Presumption of innocence and pretrial media coverage

Introduction

I. Conflictual relation between presumption of innocence and freedom of the press

A. Presumption of innocence and impartial jury

B. The sub judice rule

II. Counteracting prejudicial effects of pretrial publicity

A. Judicial remedies

B. Jury instructions to ignore pretrial publicity

Conclusion

3. Quoting Estelle v. Williams,425 U.S. 501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976).

4. Quoting Coffin v. United States,156 U.S. at 453, 15 S.Ct. 394 (1895).

5. https://dictionary.apa.org/pretrial-publicity

6. Sheppard v. Maxwell, 384 U.S. 362-363 (1966)

7. https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1559-1816.1991.tb00524.x

8. https://psycnet.apa.org/record/2001-06603-005

BART and the Cellphone Kill Switch

Kill switches are in the news again.

On April 27, the Department of Justice filed its response brief to EPIC’s petition for rehearing in Electronic Privacy Information Center v. United States of Homeland Security. The DOJ argues that The Department of Homeland Security’s Standard Operating Procedure 303 (“SOP 303”), which is a protocol for determining whether or not to shut down wireless networks “during critical emergencies,” is shielded from disclosure by FOIA Exemption 7(F) which protects “records or information compiled for law enforcement” where disclosure can reasonably be expected to endanger life or physical safety.

While we await the results of that case, I thought it would be interesting to look back at the cellphone service shutdown implemented by a public transit system I rode everyday pre-law school.

The BART Shutdown

On August 11, 2011, Bay Area Rapid Transit (BART) temporarily interrupted cellphone service at select stations to disable the communications of an organized protest and, thus, by their words, “ensure the safety of everyone on the platform.” The rationale behind the interruption in service was that organized protesters were planning to disrupt BART service which would ultimately “lead to platform overcrowding and unsafe conditions.”

The shutdown caused an uproar, triggering accusations that that the shutdown “stifled free speech” and drawing comparisons to oppressive methods employed by “Middle East dictators.”

BART allegedly “acknowledged the problem with their actions” and promulgated a new cell service interruption policy in December 2011 that would recognize its commitment to First Amendment rights of expression. The new policy purports to allow temporary interruptions only when BART “determines that there is strong evidence of imminent unlawful activity that threatens the safety of District passengers, employees and other members of the public.”

“My Lord! Is that . . . legal?”

As a layperson affected by the service shutdown, I briefly pondered the situation and assumed BART, as proprietor of the stations and the wireless network equipment within, could choose when to flip the switch.

But now can I come to the same conclusion?

After the incident, the FCC issued a request for public comment on the issue and BART’s contribution was inadequate in its elaboration of how the shutdown was consistent with the Constitution, among other things.

In a more elaborate comment, Public Knowledge, the Center for Democracy and Technology, and the Electronic Frontier Foundation discussed how the BART incident “underscore[d] the arbitrariness with which any actor with the power to initiate a wireless interruption might exercise that power.” First, it explained that the FCC has authority over wireless communications pursuant to the Communications Act and that its regulatory authority preempted state laws. Noting that states are granted police powers, the comment explains that regardless of any state laws, no local authority “may enact policies that permit activity that would be illegal under federal law.” Thus BART’s flipping of the switch constitutes an invasion into the allocation of authority on the matter.

Setting aside the duel between local and federal actors over the allocation of authority on wireless service, we are left with the more pressing issue of whether the interruption of cellphone service at any level is legally sound. The Commenters naturally find that a discussion of the BART incident leads to addressing the looming shadow of SOP 303. Finding that SOP 303 lacked any judicial oversight whatsoever (based on summaries because the actual language is not available to the public), the Commenters conclude that the protocol is constitutionally deficient. “Government initiated interruptions of wireless service are a prior restraint on the lawful speech of every cell phone user in the affected area, and such interruptions will always violate the First Amendment unless they satisfy the highest possible procedural and substantive standards.”

“I will make it legal.”

As the Supreme Court recognized over 80 years ago, it is indisputable that “the liberty of the press, and of speech, is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action.” Near v. Minnesota. But the Court was also quick to note that the liberty of free speech is “not an absolute right, and the State may punish its abuse.”

With that tension in mind, we are then left with the rule that a prior restraint of expression “comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books v. Sullivan. The Government thus carries a heavy burden of justification for the restraint. Organization for a Better Austin v. Keefe.

Prior restraints on speech are commonly understood to come in two forms: (1) statutory in which the speaker is required to acquire a permit to engage in speech pursuant to a law or regulation; or (2) a judicial injunction. The BART shutdown, which by definition was a prior restraint on speech, seems to evade both categories. Similarly, SOP 303 appears to not meet the criteria for either. Both are unilateral in nature. As the Commenters note, under SOP 303 “there is no court in the loop at all, at any stage” in the process. By all accounts the BART shutdown was a decision made internally and the new policy issued by BART, although alleging full compliance with all applicable laws, merely states that any decision to implement a temporary shutdown requires authorization of the General Manager (who is not a judicial body, let alone a lawyer).

If we go back to the idea that I had as a lay person that BART had the right to flip the switch as proprietor of the equipment, the Commenters dutifully address this as well, noting that BART “did not and cannot own” the airwaves over which cellular networks operate. Moreover, any consideration of the proprietorship of the equipment or the public forum doctrine is simply irrelevant when the actions are isolated from judicial scrutiny.

This discussion thus illustrates why the FOIA request in EPIC v. Homeland Security is potentially crucial to understanding what SOP 303 and incidents like the BART shutdown actually are in terms of First Amendment jurisprudence.

-- NealBurstyn - 08 May 2015

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