Tuesday, May 31, 2016

US Circuit Court Deals a Major Blow to Civil Liberties

The 4th Circuit Court of Appeals ruled this week that the government can ask a company for a user's location data without getting a warrant in a 12-3 decision. More specifically, they decided that asking for such information doesn't qualify as a search under the Fourth Amendment, and therefore doesn't require any protection.

If this sounds crazy, it should. If I keep a detailed journal of my whereabouts and travels each day and write it down in a notebook, that would be information that would require a warrant. If I use an app that records and stores the same information, it would not require a warrant, under this ruling.

Why it Matters
It's not difficult to see how this might help law enforcement--readily knowing a suspect's whereabouts would be quite useful indeed. And if they can get it without even demonstrating probable cause to a (likely compliant) judge, that makes it even easier by eliminating some of the bureaucracy. But this is one area where bureaucracy should be celebrated. The Fourth Amendment's prohibition against unreasonable searches and the due process guarantees in the Constitution exist for precisely this purpose: to limit law enforcement powers. This is essential not only for protecting basic privacy but also protecting political freedom.

The standard line of argument in favor of expanded law enforcement powers, whether we're talking about the local police or the National Security Agency, is that you shouldn't care if you don't have anything to hide. However, the problem with this is that there are so many laws in existence, so many in fact, that no one knows the exact number, that we're all bound to violate some of them from time-to-time. And if a law enforcement agency has access to intimate data about your life--like location data or even just metadata showing who you call on your cell phone--it would be easy to eventually find some transgression, given enough time and desire.

The above should not come off as conspiratorial. There are actually high profile cases in the past where law enforcement has attempted to intimidate political activists by investigating them to find unrelated issues. Perhaps the most famous case was that of Martin Luther King, Jr., whom the FBI unconstitutionally spied on. The FBI found nothing criminal to charge him, but did uncover evidence of adultery and tried to blackmail King with it.

Third Party Doctrine
Back to the story at hand, the court's ruling relied on a precedent known as the "Third Party Doctrine". Basically, this is the idea that if you willingly share information with a private third-party (say Google, your cell phone provider, an app maker, etc.), you no longer have any expectation of privacy with respect to that information and the government can access it without a warrant. This doesn't really make sense. If I willfully share my information with Google and the contract terms say Google won't share it with third-parties, I should logically expect that information to remain unknown to everyone except Google. However, the courts tend to land on the side of increasing government power, and so things like the Third Party Doctrine come into being.

There's a chance this case, or another that deals with this issue, will ultimately rise to the Supreme Court for a final ruling. But since the Supreme Court itself tends to have a pro-government power bias, it's not clear this would improve things. The more likely path to a positive outcome would involve state level legislation that could at least prohibit state agencies this power. It'd be great if it happened on the federal level also, but expanding civil liberties is never high on Congress's agenda.

For more on this story, you can check out the full write-up at The Intercept.

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