Tuesday, November 28, 2017

Supreme Court May Overturn Third-party Doctrine

The U.S. Supreme Court will hear a closely watched case tomorrow that will determine whether authorities can search your cellphone location data without a warrant. This dispute could change decades of privacy precedent.

At issue, for SCOTUS to decide, is the third-party doctrine, which says, if you hand your data (e.g. your location) to a third-party then you shouldn't expect it to remain private.

Currently, law enforcement can access much of your information simply by asking for it from the phone company or your ISP. While they frequently can't hand over your content, they can easily discover your location and who you communicated with. We're talking about metadata, which is data about data and how to route it. The USPS currently takes a photo of every letter and package mailed in the US and these images can be used by law enforcement.

One of the most read pieces on this blog, with over 100,000 page views, is a post about Facebook privacy. Then, I discovered that Facebook was keeping track of me via breadcrumbs. Would you like to see if Google is also keeping tabs on you? Then visit history.google.com.

Litmus Test

For tomorrow's case, Orin Kerr submitted a brief on behalf of the government arguing that the Fourth Amendment doesn’t protect location data because it’s the equivalent of being observed in a public space. 

I think Kerr's argument falls short because this data allows us to be observed in private spaces, too.

My litmus test is: how would this apply to the POTUS? Most of us would agree that we shouldn't expect privacy, in the case of a video surveillance camera recording us, in public. If the President walks down a street in New York City, many cameras will record him. But, shouldn't the President's exact location be private, in private? Did the President tweet from the Oval Office, his bedroom, someone else's bedroom, or perhaps a bathroom? Cell phone location accuracy using GPS, WiFi, Bluetooth, etc can be accurate to within a few meters.

The current challenge is that technology is evolving so quickly that consumers don't fully understand how they unknowingly yield their privacy, and laws have not caught up with citizens' expectations or understandings.

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