When you signed up with your ISP, or with a wireless carrier for mobile devices, if you gave it any thought at all when you signed your name on the contract, you likely didn’t expect your activities to be a secret, or to be anonymous, but how about at least some degree of private? Is that reasonable? No, as the law currently suggests that as a subscriber, you “volunteer” your personal information to be shared with third-parties. Perhaps not the content of your communications, but the transactional information that tells things like times, places, phone numbers, or addresses; transactional data that paints a very clear picture of your life and for which no warrant is required.
I’d like to direct your attention to an essay titled “Failing Expectations: Fourth Amendment Doctrine in the Era of Total Surveillance” by Olivier Sylvain, Associate Professor of Law at Fordham University School of Law. He said, “Today’s reasonable expectation test and the third-party doctrine have little to nothing to offer by way of privacy protection if users today are at least conflicted about whether transactional noncontent data should be shared with third parties, including law enforcement officials.”
Reasonableness is all-important when it comes to the law…what a reasonable person would expect, such as a reasonable expectation of privacy. Although you may try to hold onto your privacy, you also know that most of what you do online can be discovered. “Every moment that a user is connected to the network has become an opportunity to be surveilled by law enforcement and national security agencies.” Since we are not all criminals and terrorists, how is that reasonable?
Regarding our cell phones, is it reasonable that our “telecommunication carrier, smartphone manufacturer and others are aware of the location of their cell phone at any given time” because we happened to buy a specific model of phone, signed up with a carrier or installed apps? Additionally, “service providers and governments have forged a public-private collaboration through which law enforcement officials obtain location information about user accounts.” In fact, the more we come to accept being tracked, to having our data sold, traded and shared, the more it gnaws away at what the public can consider a reasonable expectation of privacy. Sadly, the new normal is that the Fourth Amendment is in tatters.
For some, ignorance may be bliss; for none, however, is ignorance an excuse in the eyes of the law. Take the third-party doctrine, for example. Sylvain wrote, “Courts have presumed that users consent to the public disclosure of transactional data when they volunteer them to their service providers. The third-party doctrine presumes that, when users share it with third-party service providers, they convey an expectation that the information is not private. And ‘it is not a defense that defendants do not control or know about the role of the third-party service provider’.”
In the courts, judges want guidance from legislatures, but let’s face it; the majority of Congress couldn’t fill a thimble with their combined technical prowess. Yet these individuals are working on legislation that eventually determines what can and cannot be done…what is or is not the public’s reasonable expectation of privacy.
Sylvain argues that “the reasonable expectation standard is particularly flawed if it has the effect of encouraging judges to seek guidance from legislatures on constitutional norms and principles. Judicial review is the vital antimajoritarian check against excessive government intrusions on individual liberty under our constitutional scheme. This is a responsibility that courts cannot pass off to the political branches when, as is the case today, most people expect that the cost of network connection is total surveillance.”
He adds that “court-administered privacy law doctrine must change if the protection against ‘unreasonable searches and seizures’ is to have any positive legal meaning. The current court-created doctrine will not be able to keep up if it compels judges to measure public expectation. It is time for courts to reassert their positive duty to say what privacy law is.”
The reasonable expectation standard and the third-party doctrine have outlived their time and usefulness. Reform is especially urgent today, in the era of total surveillance, when data brokers and governments can aggregate and trade transactional subscriber data about electronic communications so easily. Expectations are difficult to define when everyone, it seems, shares their personal information with service providers and application developers in order to be connected.
Courts should “bring a needed dose of reality to Fourth Amendment analysis by excising any broad assumptions about the nature of user consent in the third-party doctrine. This reform would recognize that users do not generally choose to compromise their data about their phone use (or web browsing or e-mailing) just because they disclose information for the limited purpose of obtaining telecommunications service. Participation in the networked information economy is practically a necessity today.”
He adds, “Total surveillance seems to be a highly disproportionate toll to pay for inclusion, no matter what users’ expectations are.”
I highly recommend for you to read Sylvain’s much more in-depth and eloquent explanation spread out over 39 pages. Here is where you can download the essay, “Failing Expectations: Fourth Amendment Doctrine in the Era of Total Surveillance.”