Rethinking Privacy: Fourth Amendment “Papers” and the Third-Party PDF

Enforcing the Fourth Amendment: The Exclusionary Rule . House and is the language of the ratified constitutional provi- sion.10.

Untitled

Nov 4 1972 Bangladesh

The Politics behind the Passage of Fourth Amendment to the

Constitution of the People's Republic of Bangladesh and Its to reveal the motive of AL government behind fourth constitutional amendment and its.

The Politics behind the Passage of Fourth Amendment to the

Constitution of the People's Republic of Bangladesh and Its to reveal the motive of AL government behind fourth constitutional amendment and its.

THE CONSTITUTION 5th AMENDMENT CASE

This judgment has reshaped the constitutional landscape of Bangladesh. Following this Abolition of one party system introduced by the Fourth Amendment.

The Constitution of the People s Republic of Bangladesh

fourth day of November 1972 A.D.

63 FIRST SCHEDULE [Article 47] Laws effective notwithstanding

[Second Schedule Election of President-omitted by the Constitution (Fourth Amendment). Act. 1975 (Act II of 1975) section 31.].

Rethinking Privacy: Fourth Amendment “Papers” and the Third-Party

Consequently the constitutional default for searching or seizing such categories of data must be Fourth Amendment protection

Bangladeshs Constitution of 1972 Reinstated in 1986

https://www.constituteproject.org/constitution/Bangladesh_2014.pdf?lang=en

IN THE SUPREME COURT OF BANGLADESH

of the later amendments the Twenty Fourth

ARTICLES

Rethinking Privacy: FourthAmendment "Papers"

and the Third-Party Doctrine

Michael W. Price*

NTRODUCTION

Most Americans now live in a world where nearly every call or click online leaves a digital trail that can be stored, searched, and stitched together to reveal an intimate portrait of private life. But current law affords little privacy protec- tion to information about these activities, undermining First and Fourth Amend- ment safeguards that are essential to individual freedoms and a robust democracy.

The so-called third-party doctrine1

has created a privacy gap by denying Fourth Amendment protection to expressive and associational data processed by third parties, including communications information and data stored in the cloud." Exacerbated by rapid advances in information technology and a proliferation of third-party records, the gulf continues to widen. Congress has not stepped in to fill the void. The laws that govern online privacy are older than the World Wide Web.2

It is a frequent and wholly justified

criticism of the American legal system that a great number of the people in charge of making the rules for modern information technology have little or no experience using email, sending a text, or reading a blog. 3

And federal courts

have been reluctant to delve into the business of regulating electronic surveil- lance,4 with the exception of two recent Supreme Court decisions that hint at a new way forward. 5 * Counsel, Liberty & National Security Program, Brennan Center for Justice at NYU School of Law.

© 2016, Michael W. Price.

1.SeeUnited States v. Miller, 425 U.S. 435 (1976); Smith v. Maryland, 442 U.S. 735 (1979).

2. Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (codified as

amended in scattered sections of 18 U.S.C.) (2013); Robert Cailliau,A Little History of the World Wide

Web, WC3 (1995), http://www.w3.org/History.html (first web browser used in December of 1990).

3. P.W. SINGER&ALLANFRIEDMAN,CYBERSECURITY ANDCYBERWAR:WHAT

EVERYONENEEDS TOKNOW

31-32, 39-40 (2014);Your Own Personal Internet, WIRED (June 30, 2006), http://www.wired.com/

2006/06/your_own_person/ (according to the late Senator Ted Stevens, the Internet is a series of

tubes"); Will Oremus,Elena Kagan Admits Supreme Court Justices Haven"t Quite Figured Out Email Yet,S LATE (Aug. 20, 2013), http://www.slate.com/blogs/future_tense/2013/08/20/elena_kagan_supreme_ court_justices_haven_t_gotten_to_email_use_paper_memos.html (Supreme Court Justices exchange mes-

sages via paper memo; Court hasn"t really gotten to" email.");The Luddite atop U.S. Cybersecurity,

CNN (Sept. 28, 2012), http://security.blogs.cnn.com/2012/09/28/the-luddite-atop-us-cybersecurity/ (De-

partment of Homeland Security Secretary Janet Napolitano acknowledged she does not use email at all"). (2007).

5.SeeRiley v. California, 134 S. Ct. 2473 (2014); United States v. Jones, 132 S. Ct. 945 (2012).

247
The Executive Branch, for its part, has taken advantage of the legal turmoil. 6 As we now know, in the aftermath of 9/11, the National Security Agency began collecting phone records and online metadata in bulk, 7 relying in large part on Smith v. Maryland- a 1979 Supreme Court case that involved one crime and one suspect"s phone records. 8

And while there is a bipartisan push in Congress

to update the decades-old law that gives electronic communications a patch- work of inconsistent and illogical protections, it remains to be seen whether the reform package will become law. There is a strong temptation to blame the current privacy gap on a divide between so-called digital natives and digital immigrants - those who grew up using computers and the Internet, and those who did not. 9

Of course, it is the

older generation, the digital immigrants, who make the rules (at least for the moment). Perhaps a new crop of tech-savvy judges and politicians will set things straight? This presumes a great deal about yet-to-be-invented technolo- gies and how different people will use them. And it also assumes that there will be no generational divide in the future. The problem with privacy today is doctrinal, not generational. If the Supreme Court intends to afford greater privacy protection to personal data stored electronically, as it seems inclined to do, 10 then it may want to consider a new analytical framework for the job. Existing Fourth Amendment tests are not fit for the digital long haul. This article posits a supplemental approach to data privacy, one grounded in the history and text of the Fourth Amendment and easily applicable by all jurists - even those who lack a degree in information technology. The frame- work is compatible with existing Fourth Amendment tests; there is no need to displace them entirely. But the proliferation of highly personal third-party data

6.See, e.g.,In reProd. of Tangible Things from [redacted], No. BR 08-13, at 4-18 (FISA Ct. Mar. 2,

2013) (Walton, J.),available athttp://www.dni.gov/files/documents/section/pub_March%202%202009%

20Order%20from%20FISC.pdf (discussing systemic problems" with the NSA"s metadata collection

and retention policies); [redacted], No. PR/TT [redacted], at 3-4 (FISA Ct. [redacted]) (Bates, J.) available athttp://www.dni.gov/files/documents/1118/CLEANEDPRTT%202.pdf (stating the NSAex- ceeded the scope of authorized acquisition continuously" during the term of the metadata collection

orders and noting the government"s frequent failures to comply with [the authorizations"] terms").See

generally[redacted], No. PR/TT [redacted] (FISA Ct. [redacted]) (Kollar-Kotelly, J.),available at http://www.dni.gov/files/documents/1118/CLEANEDPRTT%201.pdf (explaining legal rationale for ini- tial bulk collection of telephonic metadata).

7.See, e.g., Glenn Greenwald,NSA Collecting Phone Records of Millions of Verizon Customers

Daily,G

UARDIAN(June 6, 2013), http://www.theguardian.com/world/2013/jun/06/nsa-phone-records- verizon-court-order; James Risen & Eric Lichtblau,Bush Lets U.S. Spy on Callers Without Courts, N.Y. T IMES(Dec. 16, 2005), http://www.nytimes.com/2005/12/16/politics/16program.html.

8.SeeSmith v. Maryland, 442 U.S. 735, 737 (1979) (discussing pen register that was installed only

to record phone numbers dialed from the suspect"s home phone). 9. S

INGER&FRIEDMAN,supranote 3, at 4.

10. Michael Price & Amos Toh,The Supreme Court"s Wisdom on Metadata,A

LJAZEERA(June 28,

2014), http://america.aljazeera.com/opinions/2014/6/supreme-court-cellphonessearchwarrantriley

california.html.

248 [Vol. 8:247JOURNAL OFNATIONALSECURITYLAW&POLICY

demands an avenue for Fourth Amendment analysis that is cognizant of its role in society. 11 Section I is a brief history of the Fourth Amendment, focusing on its ties to First Amendment values in the development of search and seizure law. It tells the story of the Court"s doctrinal evolution from a focus on property rights and trespass law to the reasonable expectation of privacy" test developed inKatz v. United States. The trespass approach is well established and well suited to determining whether the search of a home is constitutional. Similarly, theKatz test may be most appropriate when the issue involves searches of the person 12 or even access to medical records. 13

But neither of these approaches provides an

adequate Fourth Amendment framework for assessing the privacy interest in expressive and associational data held by third parties. A third way may be necessary in order to account for twenty-first-century papers." Section II dissects the third-party doctrine, a prime example of how theKatz test led the Court astray on information privacy. I deconstruct the origins of the doctrine and discuss its modern consequences, which have been devastating for digital privacy due to rapid changes in technology and the proliferation of third-party records. The doctrine was a misstep nearly forty years ago, but its full effect has now come into sharp relief and necessitates a course correction. Section III proposes a new, supplemental Fourth Amendment analysis cen- tered on the privacy of one"s papers," which enjoy equal billing with per- sons," houses," and effects" in text, if not in practice. 14

The Supreme Court

has not been eager to articulate how the Fourth Amendment should apply to papers" independent of their physical location in a constitutionally protected area" 15 like a home or office. But in light of the history and purpose of the Fourth Amendment, it is fair to say that papers" should be read to protect expressive and associational data, regardless of its form, how it is created, or where it is located. Fourth Amendment papers" may be pamphlets and letters in hard copy, or they may be digital files stored on a cell phone, hosted in the cloud," or even generated by a third party. Of course, not all third-party records have significant expressive or associa- tional value. An online search for political or religious commentary may be followed by one with no clear First Amendment value whatsoever. Embarrass- ing, perhaps. But is it really the kind of speech the Framers fought a revolution to protect? The truth is that no one can begin to tell before looking, and that is

11.SeeMichael Price,I"m Terrified of My New TV: Why I"m Scared to Turn This Thing On - And

You"d Be, Too,S

ALON(Oct. 30, 2014), http://www.salon.com/2014/10/30/im_terrified_of_my_new_tv_ why_im_scared_to_turn_this_thing_on_and_youd_be_too/.

12.See, e.g., Terry v. Ohio, 392 U.S. 1 (1968).

13.See, e.g., Or. Prescription Drug Monitoring Program v. U.S. Drug Enforcement Admin., No.

3:12-cv-02023-HA, 2014 WL 562938, at *6 (D. Or. Feb. 11, 2014).

14. U.S. C

ONST. amend. IV.

15.SeeFlorida v. Jardines, 133 S. Ct. 1409, 1414 (2013); United States v. Knotts, 460 U.S. 276, 286

(1983) (Brennan, J. concurring); Silverman v. United States, 365 U.S. 505, 512 (1961).

2016] 249RETHINKINGPRIVACY

precisely the problem. Consequently, the constitutional default for searching or seizing such categories of data must be Fourth Amendment protection, that is, a warrant based on probable cause. Section IV returns to the third-party doctrine and analyzes two common categories of third-party data using the test proposed in Section III. I articulate how the theory would apply to data stored in the cloud and to communications data, while seeking to avoid the pitfalls of existing approaches. I conclude that both types of data, as well as their associated metadata, should be protected under the Fourth Amendment and that law enforcement should be required to get a warrant before searching or seizing them. Finally, I discuss the potential limits of this approach. Certain types of third-party records that we intuitively believe to be private, such as medical and financial records, do not always have obvious First Amendment value. At the same time, it is not difficult to imagine scenarios where there is in fact a First Amendment component. Thus, we must acknowledge their First Amendment potential and recognize that the inability to pre-determine content means that the default should be set to privacy. I. AB

RIEFHISTORY OFFOURTHAMENDMENTSEARCH&SEIZURELAW

The Fourth Amendment is not long or particularly convoluted. It contains a mere fifty-four words and its scope boils down to just four nouns: persons, houses, papers, and effects." 16

How broadly or narrowly one interprets these

four categories has a tremendous impact on privacy rights and is the subject of nearly constant constitutional debate. The history and purpose of the Fourth Amendment, however, have long been a lodestar to help interpret and define its boundaries. And one of the most essential aspects of that history and purpose is the strong connection between the First and FourthAmendments.

A. Freedom of Speech and the Fourth Amendment

The history of the Fourth Amendment reveals a long and storied relationship between the right to be free from unreasonable searches and seizures and the principles of free speech now enshrined in the First Amendment. The Fourthquotesdbs_dbs11.pdfusesText_17

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