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SidneyLeeSecondEssay 1 - 27 Nov 2024 - Main.SidneyLee
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Privacy in Real Time
-- By SidneyLee - 27 Nov 2024
Introduction
The Fourth Amendment is supposed to protect us from unreasonable searches and seizures without a warrant. More specifically, the law is supposed to protect our “reasonable expectation of privacy.” However, what constitutes a “reasonable expectation” as technology becomes increasingly invasive? In Riley v. California (2014) and Carpenter v. United States (2018), the Supreme Court formally recognized that individuals have a reasonable expectation of privacy in their cell phone content and historical location information (1). If, as the Supreme Court has stipulated in Katz v. United States (1967), that “what [one] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected” then we should be able to expect that our daily movements will not be precisely tracked, stored, and shared with the government at any time (2).
Real Time Location Tracking
Real time location tracking enables law enforcement to monitor individuals through data bought from data brokers, often without warrants (3). Apps regularly request location access from phone users, either to operate as intended (such as weather apps and navigation apps) or to suggest targeted advertising (all social media apps). However, these apps also have the ability to share location access data with third parties. Data brokers can pay app developers for this personal data, and are able to gather data whenever the app has access (4). This means that data brokers can also access location data whenever the app is being actively used, or even obtain background access to data even when the app is closed (4).
One significant example of how law enforcement uses commercially available location data is when the U.S. military funded an academic project at Mississippi State University using location data to track individuals’ movements around Russian missile test sites (5). The U.S. Army’s policy on collection of cell phone data is to authorize collection as long as no “personal characteristics” of the phone’s owner are collected; thus it seems that the Army does not view detailed movements as “personal characteristics,” which provides an alarming indication of how the military will use data in the future (5). Another example that should cause concern domestically is the practice of “geofencing” by police. State and local law enforcement also buy location data to gather more information about individuals who may or may not be involved in crime. By “geofencing,” law enforcement are able to digitally “fence” a geographic area and then collect location data from everyone in that physical area (4). Geofencing still requires a warrant, but other companies like Fog Data Science rely on advertising identification numbers, collected from numerous apps with targeted advertising, that escape the warrant requirement by maintaining “anonymity” of specific phone users (6).
Increasing Legal Protection of Privacy
As integrated surveillance technologies become increasingly common, the courts and legislature must maintain the Fourth Amendment’s warrant requirement and strengthen legal protection of our expectation of privacy. The Fourth Amendment at minimum should protect the requirement that, if the government wants to access data about an individual, it must obtain a court warrant based on probable cause.
On April 17, 2024 the House passed the Fourth Amendment Is Not For Sale Act, which would “close the data broker loophole” by prohibiting intelligence agencies and law enforcement from purchasing data without a warrant (7). The Executive Office of the President issued a statement opposing the Act on the grounds that it would prohibit intelligence and law enforcement from “obtaining certain commercially available information” while leaving foreign adversaries free to obtain and use the same information (8). However, the Administration ignores the fact that law enforcement most frequently obtains data to gather information about its own citizens to prosecute Americans, not its foreign adversaries.
The lack of federal regulation on data brokerage at an industrial scale shows how the legal landscape has failed to keep up with changing technology. Several states have made efforts to increase regulation of data brokers, including Vermont and California. Vermont passed the first data broker legislation in 2018 requiring data brokers to register with the Secretary of State and report information on their data collection activities (9). However, it should be the federal government’s responsibility to set baseline requirements for data broker activity across the whole country.
The legislature should go further in protecting Fourth Amendment rights by prohibiting practices by data broker companies like Fog. It is extremely alarming that Fog is able to sell data about virtually anyone to law enforcement without a court warrant simply because the individuals’ names are not revealed. It would be naive to think that just because an individual’s name is not given to intelligence agencies and law enforcement that someone’s identity could not eventually be ascertained through historical location access and personal data. Data brokers are able to build comprehensive profiles of individuals, and in the Supreme Court’s own words in Carpenter, “the time-stamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.’”
Conclusion
It is inevitable that we are going to be seen in public and that our presence will be perceived in some way, even simply by strangers looking. But surveillance technology has fundamentally changed our understanding of what it means to be observed in public. Today it may be a reasonable expectation that public accommodations (such as banks and stores) install video security cameras for their own safety, but perhaps this is just an example of how our benchmark of what we commonly think of as “reasonable” has moved further. Technology can now keep record of our location over time and personal information, and store such data indefinitely. It is important for us to not take it for granted that our daily movements are constantly tracked, and that we do not passively give up our right of privacy. |
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All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
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