The Fourth Amendment in a Digital Age

October 12, 2017

We are living in a time where we can use smart technology to track almost everything about us. We useUS Constitution smart watches to track our movements, exercise, sleep, and eating habits; we use smart phones for just about everything from social media to banking; our cars are equipped with GPS; we can install smart light bulbs; and, there are even toothbrushes that will record and track our oral hygiene habits.

All of this data, about some of the most private aspects of our lives, is being recorded, stored, and transmitted to third parties.  While this information has proved to be valuable to law enforcement, the acquisition of this information raises significant Fourth Amendment issues. In November, the US Supreme Court is set to hear the Carpenter v. U.S. case, on whether warrantless search and seizure of historical mobile phone records, which reveal location information, is permitted by the Fourth Amendment.

The Fourth Amendment protects against unreasonable searches and seizures (U.S. Const. Amend. IV). In order for the Fourth Amendment to apply, there must be a “search” or a “seizure”.

Some of the significant case law developments surrounding interpretation of the Fourth Amendment include:

  • Boyd v. United States: It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty. and private property, where that right has never been forfeited by his conviction of some public offense. Boyd v. United States, 116 U.S. 616, 630, 6 S. Ct. 524, 532, 29 L. Ed. 746 (1886)
  • Katz v. United States: Government’s activities in electronically listening to and recording defendant’s words spoken into telephone receiver in public telephone booth violated the privacy upon which defendant justifiably relied while using the telephone booth and thus constituted a “search and seizure” within Fourth Amendment, and fact that electronic device employed to achieve that end did not happen to penetrate the wall of the booth could have no constitutional significance. Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)
  • Kyllo v. United States: Obtaining by sense-enhancing technology any information regarding the interior of a home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area, constitutes a “search”—at least where the technology in question is not in general public use. Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001)
  • United States v. Jones: Government’s installation of Global–Positioning–System (GPS) tracking device on target’s vehicle, and its use of that device to monitor vehicle’s movements, constitutes a “search,” within meaning of Fourth Amendment. United States v. Jones, 565 U.S. 400, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012)
  • Riley v. California: Under search incident to arrest exception, privacy concerns with data stored on arrestees’ cell phones dwarfed those involved with physical objects, and thus extending conclusion that inspection of physical objects worked no substantial additional intrusion on privacy beyond arrest itself to include police officers’ search of cell phone data was unwarranted; cell phones differed from other physical objects both quantitatively and qualitatively, given phones’ immense storage capacity, collection in one place of many distinct types of private information, and ability to convey more information than previously possible, and phones also presented issue that they can access information not stored on phones themselves, which information government conceded was not covered by this exception. Riley v. California, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014)

Despite these developments there is still an issue that needs to be addressed – the third party doctrine. Cornell Law Review Article, The Smart Fourth Amendment, by Andrew Guthrie Ferguson, poses this issue nicely saying:

“As currently understood, information provided to a third party (e.g., a phone company, friend, or any of the companies providing devices in the Internet of Things) loses protection under a reasonable expectation of privacy theory. The rationale has been that by giving the information to another, the giver loses a claim to privacy over the information. Academics have criticized the doctrine as being ill-suited for the digital age. Justice Sotomayor in Jones suggested reconsidering it. Despite these criticisms, the practical reality remains that because data is usually held by another entity as well as the owner, a broad reading of the third party doctrine undermines Fourth Amendment protection for most data trails. For purposes of this Article, the focus is on the direct interception of data trails, rather than third party collection. This Article asks whether the Fourth Amendment protects the direct interception, collection, and use of data trails by law enforcement. If the answer is no, then there is no Fourth Amendment protection for the data trails we create. If the answer is yes, then the third party doctrine may still allow a work-around for law enforcement to get the same information indirectly (via the third party).”

When every bit of your information is more readily available, in order to make our lives easier and, hopefully, fuller, it is all the more important to know the legal implications of our trackability and what your rights are in regards to the Fourth Amendment.

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