Time to reconsider the Fourth Amendment

iStock_000006229203XSmall-214x300As the digital age advances, technology becomes ever more entwined into our daily lives. Stunning revelations about mass government surveillance[1] have led many to wonder what privacy protections still remain for citizens. With the death of Justice Antonin Scalia[2]; the most ardent defender of the Fourth Amendment on the Supreme Court, some feel that the Amendment’s protections will continue to erode in the digital age.

What is the Fourth Amendment?
The Fourth Amendment of the Unites States Constitution is one of the bedrocks of our criminal justice system. While relatively short, the Amendment encapsulates a foundational idea of our government. It guarantees citizens’ protection against unreasonable search and seizure, and establishes the importance of a warrant.  The Fourth Amendment reads as such:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”[3]

These words established the fundamental protections of one’s home, papers, and effects against unreasonable search and seizure, shifting the burden onto the state to prove good cause for suspecting and searching your person and property.

How has the Fourth Amendment been eroded in the digital age?
The protections enshrined in the Fourth Amendment, as important as they are, have eroded with time and advancing technology. The most apparent way the Fourth Amendment has been eroded is “third party doctrine[4].

The “third party doctrine” is a legal theory with deep roots in American jurisprudence. This theory establishes that those who voluntarily give over information to third parties have no reasonable expectation that the information that has been turned over will not be shared with other parties or the government. This means that any information that you give to a third party can be obtained by the government without probable cause and without a warrant, thus circumventing the protections established by the Fourth Amendment.

The principle behind this theory is quite sound when examined before the explosion of the digital age. If for example, one were to tell a third party that they were going to commit a crime, it would make little sense to prevent police from using that information if that third party relayed it. However, in the digital age where the average person is dependent upon volunteering information to third parties, the exception threatens to engulf the rule.

Foresight into the erosion of the Fourth Amendment
While the array of third parties required to voluntarily give information expands, so too the ability of the government to collect information about you and your actions free from cause or justification. Even so, the Supreme Court in 1979 established a procedure for reexamining the Fourth Amendment in light of an ever-expanding surveillance state in Smith v Maryland[5].

The facts of Smith v. Maryland are disturbing to say the least. In 1976, Ms. McDonough’s home was the victim of a robbery. After the robbery, she began receiving obscene and threatening phone calls from a man identifying himself as the robber. She reported the incident to the police, and gave the description of the car and its license plate that had been in the area when the robbery occurred. Police traced the license plate number to a Mr. Smith. Police then had the phone company track and turn over the numbers that were called from Mr. Smith’s phone number. With this evidence, the police obtained a search warrant for Mr. Smith’s home, and upon searching his home found items that had been taken during the robbery and a phone book opened to Ms. McDonough’s number circled in red pen.

At trial, Mr. Smith sought to have the evidence obtained via the phone company suppressed for violating his Fourth Amendment rights. His argument centered on a test established by a previous Supreme Court case Katz v United States[6]. The test established in Katz concerned Fourth Amendment protections for “reasonable expectation of privacy”. Mr. Smith argued that he had a reasonable expectation of privacy that the numbers he called from his phone line would not be shared with anyone.

In a 7 – 1 decision, the Supreme Court held that there was no reasonable expectation of privacy concerning the dialed phone numbers because those numbers must be shared with the phone company to complete the call. The third party exception allowed the phone company to share those numbers without violating the Fourth Amendment.

While the decision was not particularly surprising or ground breaking, what was groundbreaking and relevant was footnote five in the case. This long footnote establishes that as technology advances, reasonable expectation of privacy may be eroded whether by the proliferation of third party relationships or by the government decreeing that you no longer have a reasonable expectation of privacy. The Court established that it must reexamine the meaning of the Fourth Amendment in order for its protections to have meaning in such a circumstance. It would take thirty-three years before the Fourth Amendment was reexamined.

The First Call to Reexamine the Fourth Amendment
Thirty-Three years after the option was left open, the first call to reexamine the Fourth Amendment occurred in the 2012 case of United States v Jones[7]. Jones reestablished an older principle regarding searches holding that a trespass against one’s personal effects constitutes a search within the meaning of the Fourth Amendment and thus required a warrant.

Mr. Jones was suspected of being a member of a large cocaine trafficking operation in the D.C. area. Police obtained a warrant to attach a GPS tracker to Mr. Jones’s car ten days from the issuing of the warrant, and within the D.C. Metro area. Police finally attached the tracker eleven days after the warrant was issued, and attached it to the car in Maryland.

At trial, Jones sought to have the GPS data suppressed because the police failed to follow the warrant and thus the attaching of the warrant constituted an unreasonable search. The state argued that they did not need a warrant to attach the GPS tracker as it was attached to the vehicle in a public place, and there was no reasonable expectation of privacy on public roads thus there was no search requiring no warrant. The trial court compromised and suppressed the GPS data from when the car was on Mr. Jones land, but allowed all the data from when the car was on public roads.

After eight years of winding through the appeals courts, the case reached the Supreme Court. Delivering a 5 – 4 decision the court held that the attaching of a GPS tracker to the car constituted a search because it required the government to trespass against Mr. Jones person effects. Thus the state required a warrant, which it failed to obtain.

While the majority opinion suppressed the evidence, a concurring opinion from Justice Sotomayor went a step further and heralded the need for a reexamination of the Fourth Amendment’s protection in the digital age. Justice Sotomayor’s concurrence called on the court to undertake the task laid out in footnote five of Smith v Maryland and reexamine the Fourth Amendment’s protections in the modern age. She stated:

“People disclose the phone numbers that they dial or text to their cellular providers, the URLS that they visit and the e-mail addresses with which they correspond to their Internet service providers, and the books, groceries and medications they purchase to online retailers . . . I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.”

Her call signals to lower courts that there is a willingness from the Supreme Court to reexamine the protections established in the Fourth Amendment in the digital age, and further signals an interest in limiting the accessibility of information given to third parties.

While the Supreme Court has not undertaken the task called for by Justice Sotomayor, the precedent is set for the court to reexamine the protections laid out in the Fourth Amendment. In an increasingly connected world where one is essentially forced to give information to third parties, the reasonable expectation of privacy protected by the Fourth Amendment is ever shrinking. With revelations of mass government surveillance and an ever more digital world, the protections established by our Founding Fathers must be bolstered to stay relevant in our current age.

Written by Hunter White

[1] https://www.washingtonpost.com/news/wonk/wp/2013/06/12/heres-everything-we-know-about-prism-to-date/

[2] https://www.washingtonpost.com/politics/texas-tv-station-scalia-died-of-a-heart-attack/2016/02/14/938e2170-d332-11e5-9823-02b905009f99_story.html

[3] USCS Const. Amend. 4

[4] http://www.theatlantic.com/technology/archive/2013/12/what-you-need-to-know-about-the-third-party-doctrine/282721/

[5] Smith v. Md., 442 U.S. 735, 99 S. Ct. 2577 (1979)

[6] Katz v. United States, 389 U.S. 347, 88 S. Ct. 507 (1967)

[7] United States v. Jones, 132 S. Ct. 945 (2012)

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