Friday, January 27, 2012

Fourth Amendment Protections

Technology and privacy in a changing world

(The usual disclaimers apply, starting with "I am not a lawyer, and I don’t play one on TV")

Technology can radically challenge the balance of many things, including the expectation of privacy. With new technologies (like GPS) and practices (like the broad deployment of cameras in public spaces) come changes in the real privacy we experience, and perhaps what privacy we should expect. Should the interpretation of the constitution and the fourth amendment also change with the times?

The Supreme Court of the United States ruled this past week that law enforcement must have a valid search warrant in order to attach a GPS device to a car for investigative purposes. The ruling was unanimous, but the opinions varied.

While Justice Antonin Scalia ruled narrowly on trespass and private property, two other Associate Justices, Samuel Alito and Sonia Sotomayor, filed concurring opinions that seemed to go quite a bit farther toward recognizing the “subjective expectation of privacy that society recognizes as reasonable,” and how an attached GPS device violates that expectation.

I find it very encouraging that the court is willing to think more broadly on how our rights are affected by changes in technologies and practices. Many common technologies in use today to help travelers, to help keep city streets safer, to help companies effectively market their products and services, can also be used to track people, especially in certain combinations. This was an important ruling on a crucial privacy matter, central to how fourth amendment protections apply today. 

Will this ruling have impact on the related topic of location data associated with smartphone use? On extreme tracking of online activity on the web and the correlation of related data to profile users? What's your "reasonable expectation?" Leave a comment and let us know.

For a much more thorough discussion of fourth amendment concerns in the digital age, see Christopher Slobogin's chapter in the book Constitution 3.0.


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