Justice and Due Process

Why Legislate Privacy?

State legislation designed to curb privacy abuses are gaining traction. Utah has passed statutes designed to undercut privacy abuses; one such reform prevents law enforcement from obtaining someone’s electronic data without a warrant.

However, this is only the tip of the iceberg in relation to technological advances that compromise individual privacy rights. This blog post addresses the importance of state legislation and the privacy reforms of the future.

Given America’s federal system, where states have limited jurisdiction, the purpose of state legislation is important to understand.

State legislative chambers represent the people’s consent.

In our federal system, state representatives align more closely with their constituents when compared to federal congressional representatives.  They pass laws directly impacting the individuals within their jurisdiction. Laws passed by states show the passions of the people in action. Through state representatives, Americans display their values and voice their concerns. 

Although federal laws are not directly impacted by the action of the states, when similar legislation is passed across numerous states, the will of the people becomes evident and this has an effect on the actions of federal politicians. If nothing else, politicians are pragmatic. They  understand the consequences of pushing the boundaries of the public’s consent, and that impacts how politicians and other government actors behave.

States are the laboratory of democracy.

State laws are important, not only because they display the will of the people, but also because they present a model for states to craft better policy solutions. 

The issue of privacy in the twenty-first century is an example of this phenomenon. States across the nation have begun to pass laws protecting individual privacy rights. When states work to pass meaningful reforms to protect individual rights, the issues sparking these legislative reforms become more well known throughout society and culture. This leads to more robust debate and—ultimately—better policy solutions.

What privacy reforms are still needed?

The complexity of twenty-first century privacy concerns and the need for legislation is understood not only by the public and their state representatives. The judicial system is not designed to fully address the scope of these problems. Indeed, Justice Scalia wrote of the importance of legislative solutions, noting that “Legislatures, elected by the people, are in a better position than [courts] to assess and respond” to a rapidly changing technological environment. The “blunt” instrument of the courts, he argued, is not sufficient to meet the challenges of the present moment.

Technological advances have opened a Pandora’s box of privacy concerns in relation to individual rights. Even if every state in the union passed a bill mirroring Utah’s warrant requirement for law enforcement obtaining electronic data, much work in this realm would remain.

Among the most pressing concerns are reverse warrants and the widespread use of facial recognition software.

Reverse searches are requests made by law enforcement to a technology company seeking caches of data that could be relevant to a criminal investigation. These requests are commonly made for physical location. However, geofence warrants are only one of this category of searches. The use of the same technique to obtain keyword search results is raising red flags for privacy advocates.

Facial recognition software represents another area ripe for privacy legislation. Montana’s legislature is actively debating how to best regulate the government’s use of this new AI driven technology to prevent widespread privacy violations. Other jurisdictions share these concerns, with some placing moratoriums on the use of the technology. 

Reverse searches and facial recognition legislation could clarify the use of these emerging technologies by ensuring Fourth Amendment protections are codified by statute, preventing situations where individuals’ rights are in the hands of judges who may choose to interpret the Fourth Amendment so broadly that it is rendered functionally void.

For example, law enforcement running an identification search for a particular suspect of specific crimes using facial recognition is distinct from allowing real time surveillance of public spaces, real or virtual.

There is no necessary dichotomy between public safety and privacy. Rather, in a world governed by our founding principles, law enforcement follows clear guidelines that serve as a foundation of trust between the public and the police. Legislatures across the country must take the lead in protecting privacy by passing laws that bring technological advances under the purview of the principles on which the Fourth Amendment rests.