The Price of Convenience
Applications on smart devices constantly gather personal information about users, which is the price willingly paid to receive push notifications of tennis scores. This tradeoff appears relatively fair, especially during the French Open. What is the harm in a comprehensive portrait of one’s identity to sell to advertisers? After all, I prefer targeted advertising. I would like to know when the Hallmark Channel’s Countdown to Christmas begins, thank you very much. I am distressed when I receive ads that do not align with my needs. What did I do to make “them” think I shop at (redacted) ? It is clear; however, this piece would not be written if targeted advertising was the only consequence of this data collection. Data amassed by third-parties is freely provided to the government without a warrant. I imagine many are thinking, “but what about the Fourth Amendment?” That string of words?! It is easily worked around.
The “Third-Party Doctrine”
The Fourth Amendment guarantees individuals’ security in their persons, houses, papers and effects from unreasonable searches. Additionally, the amendment requires the government obtain a search warrant based on probable cause before conducting a search or seizure. Supreme Court precedent; however, holds that information voluntarily provided to a third-party loses protection under the Fourth Amendment.[1] The “third-party doctrine” is rooted in a series of informant cases from the 1950s and 1960s where the Court highlighted the voluntariness of information disclosed to informants.[2] There is no “reasonable expectation of privacy” in this data; therefore, a warrant based on probable cause is not necessary. Individuals are often unaware of data gathered by third-parties when they are online or use a smart device. Furthermore, technology dependence necessitates continued use of devices that gather and store potentially sensitive information about users. The Court should eliminate the “third-party doctrine” because a considerable amount of information is not voluntarily given.
“Voluntariness” in the Age of Cookies and Geolocation
When browsing the Internet, one is likely unaware that small files– cookies– are embedded on computers to track online behavior. Cookies are unique identifiers primarily used for targeted advertising across the Internet and to gather analytics about users. Many do not know the extent their behavior is tracked, or how to block, or opt-out of tracking. Furthermore, the opt-out options are not wholly effective and adversely affect the ease of the online experience. Cookies store what users put in online shopping carts and login information. [3]
Geolocation applications also compromise privacy. These applications are used for many reasons such as to identify nearby entertainment, provide directions, the weather, and access to rideshare services. Individuals’ physical location is often tracked when applications are not in use.[4]
The voluntariness of information gathered by cookies and geolocation services differs from the informant cases. The government may argue that people willingly provide information to apps and recognize that location monitoring is necessary for many. Users subsequently enjoy a reduced sense of privacy and the government is entitled to information gathered by the application. The argument fails to consider instances when an applications’ use appears innocuous, but is designed to data mine. For example, the flashlight app by iHandy gathered data from users’ calendars and cameras and monitored their location.[5] Most users would not conceive that a flashlight app monitored their flight information and dentist appointments. If users are unaware of data collection, then it was not voluntarily provided. The government should receive a warrant to access information technologically gathered by third-parties.
Whoa whoa whoa, what about Carpenter?
The United States v. Carpenter is a 2018 case where the Supreme Court held that the government must receive a warrant before compelling phone companies to disclose location information about their customers. Chief Justice John Roberts stated that there was a “seismic shift in digital technology” that made it possible for near constant surveillance. In 2018, phone records were maintained for five years by service providers and the Chief noted a person “has effectively been tailed every moment of every day for five years.” He further argued “cell phone location information is not truly ‘shared’ as one normally understands the term.” The phone is “indispensable to participation in modern society,” and a “cell phone logs a cell-site record by dint of its operation, without any affirmative act on the part of the user beyond powering up.”[6] Despite the judgment in Carpenter, the government still receives location data without search warrants by purchasing data through brokerage firms. The government interpreted the warrant requirement from Carpenter to apply only when it forces a company to provide data, not if it is voluntarily given or sold. Location data and other sensitive information collected from apps are packaged and sold to brokers, who sell it to the government. The government is free to purchase data about any person, even when it is not needed for a criminal investigation.[7] Due to this workaround, it is imperative the Court require the government always obtain a warrant when they receive any user data obtained from technological monitoring. The Court should extend a reasonable expectation of privacy to all data collected technologically by third-parties.
BS Conclusion
Modern technology requires the elimination of the “third-party doctrine.” Perpetual surveillance conducted by private industry should not result in the government’s unrestricted use of user generated data. Smart phones are now necessary for most to live, move and have their being. If I accidentally leave my phone at home, I am not relieved because I am free of the burdens of social media, the news, emails, text, phone calls and constant geolocation monitoring. I am stressed; convinced this is the day I will be stranded on the side of the road, or John Mayer will be live on Instagram and I will miss it! The government is betting we will give up privacy in exchange for push notifications, and it is correct. Why does the government know us so well? It must be in the data! The government really got its money’s worth…
BS
[1] Miller v. United States, 425 U.S. 435, 443-44 (1976) and Smith v. Maryland, 442 U.S. 235, 477 (1979).
[2] On Lee v. United States, 343 U.S. 967 (1952), Lopez v. United States, 272 U.S. 427 (1963), and Hoffa v. United States, 385 U.S. 293 (1966).
[3] Ashkan Soltani, Andrea Peterson, and Barton Gellman,
NSA uses Google cookies to pinpoint targets for hacking:
The Washington Post, December 10, 2013
https://www.washingtonpost.com/news/the-switch
/wp/2013/12/10/nsa-uses-google-cookies-to-pinpoint-
targets-for-hacking/?utm_term=.cf8b5cdf5008.
[4] Id.
[5] Robert McMillan, the Hidden Privacy Threat Of…Flashlight Apps? Wired Magazine: October 20, 2014. https://www.wired.com/2014/10/iphone-apps/
[6] Carpenter v. United States, 138 S. Ct. 2206
[7] https://www.washingtonpost.com/outlook/
2021/04/26/constitution-digital-privacy-loopholes-purchases/