3/6/15

By Heidi Schumann, ACLR Featured Online Contributor

The struggle to balance the breadth of the government’s ability to investigate actions by its citizens against the interest in protecting individual privacy from government invasion has had a long history, and is apparent even in the Constitutional language of the Fourth Amendment, itself.1 Many scholars believe that the Fourth Amendment protections evolved from a theory of trespass, and the language and nature of the protection afforded through interpretation of the Fourth Amendment reflected a desire to protect property from trespass by the government.2 As technology developed and the nature of the intrusions changed there was a paradigm shift in the interpretation of the privacy interest protected under the Fourth Amendment.3 Alongside the traditional trespass theory a new standard developed in which invasions of privacy are measured based on whether an action invaded a person’s “reasonable expectation of privacy.”4 This standard, which evolved as a result of the evolution of technology, has like its predecessor become outdated. It fails to adequately protect the interests of citizens against the new forms of privacy intrusion resulting from the advancements in technology employed by the government.

The use of several types of technology developed and put into use within the last decade are not being properly limited under the current jurisprudence of the Fourth Amendment. One such example is the wide use of tower dumping, Stingrays, and other such cell phone data collection methods. As of 2013, about one in four police departments employ an information collection method called tower dumping, which collects data, including location and activity of all cell phones that have connected to that tower over a specified period of time.5 This can include information from thousands of phones.6 At least 25 police departments own a device, which is even more invasive to privacy, known as a Stingray.7 A Stingray operates like a mobile cell tower, receiving information from the phones that are within range and downloading that information from all of the phones to the device.8

The use of Stingrays and the collection of the cell phone data are predicated on  two doctrines developed from the reasonable expectation of privacy inquiry.  First, is the consideration of whether an action violates someone’s expectation of privacy, such as the electronic eavesdropping devices in Katz.9 The second is an exception to the warrant requirement for searches involving information disclosed to a third party.10 In Smith v. Maryland, which established this exception, the Court held that the defendant could have no legitimate expectation of privacy in the phone numbers that he dialed, because he knew that the phone company would have to have this information in order to connect his call.11 This holding has formed the basis for the collection of pen registers12 of cell phones common today, and serves as the constitutional basis for the collection of cell phone data, which is transmitted to the cell carriers, a third party.13

The Court in Smith v. Maryland balanced the reasonable expectation of privacy and privacy intrusion of 1960s pen register technology, which only disclosed the list of phone numbers dialed. In Jones v. United States, a 2012 case involving the use of a GPS tracker attached to a car for an extended period of time, Justice Sotomayor doubted that the traditional reasonable expectation of privacy framework was adequate to deal with the evolving degree to which technology can track, record, and store the data of daily human life.14 In the most recent cases on this issue, Riley and Wurie, the Court again considered the adequacy of the reasonable expectation of privacy doctrine in dealing with the privacy interests.15 While Riley and Wurie dealt with an actual invasion of property, the physical search of a cell phone, the court recognized the massive amount of information, which is now stored in our technology.16 However, despite both the concern expressed by the Justices and their recognition of the substantial amount of information contained on the devices, the court still has not revamped the Fourth Amendment framework. Smith still is applicable precedent allowing the police, FBI, and other government bodies, pursuant to the statutes passed by local and federal governments, to collect data far more invasive that was ever imagined by the Smith Court at the time.

Another type of technology not adequately considered under the Constitutional framework of the Fourth Amendment is metadata collection. The information available through metadata collection touches not just on what and how the information is obtained, but when that same information is stored and analyzed in mass quantities the new type of information that can then be extracted from it. This concern is hinted at in Jones.17 Whether or not the Court can manipulate the reasonable expectation of privacy standard to protect citizens from data searches, it is not designed to deal with the privacy concerns that arise when data is stored in mass quantities over a long period of time. With new technological advancements in data storage and information analysis, information about trends both criminal and innocent can be determined long after the data is collected.18 Yet, the collection of the information is still being analyzed in large part under Smith v. Maryland.19

As one scholar argued, the trend data, which is information about a group of people, including behaviors and preferences, and is obtainable through analysis of the metadata, can be manipulated to correlate certain behaviors or characteristics with crime involvement.20 As a result, it is likely that this type of data could serve as the reasonable, articulable suspicion or even probable cause necessary to conduct even more invasive searches.21 The framework in which data is collected from all people who use technology, which pretty much means all people, then stored and analyzed in order to develop data, which categorizes groups of people and predicts future behavior of groups of people is hardly what a person reasonably expects to be a consequence of carrying a cell phone in his or her pocket. However, the reasonable expectation of privacy inquiry does not capture and therefore, does not protect against this larger privacy concern.

Certainly, there are many benefits to allowing government to have and utilize the capabilities now available through technology. There are also many benefits to allowing the government to have free reign to search and seize any and all relevant evidence to a criminal investigation. The Framers of the Constitution recognized that those benefits are outweighed by the costs of abuse and invasion to privacy, and as a society we are committed to that idea. Therefore, the constitutional interpretation of the Fourth Amendment must continue to balance those interests and keep up with the advancements in technology.