Protecting The 4th Amendment In the Digital Age

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” —Fourth Amendment to the U.S. Constitution

Imagine government authorities monitoring your every movement in addition to your every word. Of course, this is now easier to imagine in our post-Snowden world. Fiction meets reality in local law enforcement, for example with technology allowing police officers to indirectly tap your cell phone by fooling it into thinking that their suitcase-sized surveillance device was the nearest cell phone tower. Taking a page out of the NSA playbook, law enforcement agencies around the country are acquiring and using this new technology.

The device mentioned above—one of many technological tools enabling surveillance of the citizenry—is known as a “Stingray.” This telecommunications device intercepts mobile communications by funneling all nearby connections through itself before passing them on to actual cell phone towers. It is highly portable and can be deployed anywhere. It has the ability to allow law enforcement to not only obtain cell phone location data—something they already obtain quite routinely from telecom service providers—but also call records and text message logs. While the specific devices known to the public are not supposed to be able to obtain call or text content, the reality is that we live in an age when such capabilities exist, even if not currently used. While some police agencies and investigators recognize the need to obtain a warrant for this activity, many do not; research indicates that warrants are not being obtained consistently for the implementation of this technology.

While we welcome police efforts to protect our rights by finding and prosecuting criminals using the best available technologies, we also expect that critical constitutional rights not be violated in the process; as Benjamin Franklin famously warned, we should not trade our liberties in the name of safety. The founders did not have cell phones and could not have imagined all of the technology of our digital age. However, they wrote the Fourth Amendment broadly enough to protect the concept of privacy and security in our lives from unreasonable government intrusions when unwarranted and without probable cause. The challenge of privacy-conscious individuals is ensuring that broad principles keep pace with (and be applied to) emerging technologies and their use by government. Since government has the power to tax and spend it can obtain and deploy the necessary resources to keep ahead of specific regulatory oversight if it so desires. Therefore, the effort to proactively assert and protect key liberties can never be too hasty.

Recently, we wrote about legislative victories for Fourth Amendment protections in this year’s Utah legislative session. Among these were additional protections for electronic data privacy—including the contents of a cell phone or location data. Libertas proposed legislation, sponsored by Representative Ryan Wilcox, that became House Bill 128. This bill passed both chambers nearly unanimously and is currently awaiting the signature of the governor. The bill requires a search warrant to obtain the location, transmitted data, or stored data of an electronic device such as a mobile phone or laptop. It also requires law enforcement to delete any data they collect that does not pertain to the suspect named in the warrant, and requires notification to the individual that the location or data was obtained—much like when a person is served a copy of a traditional warrant when physical property is searched or seized. The bill is also careful not to change current judicially recognized exceptions such as locating someone in an emergency. In effect, the bill makes clear that electronic devices are part of the “persons, houses, papers, and effects” protected by the Fourth Amendment to the Constitution. Living in the digital age requires affording electronic data the same protection as physical paper data.

The need for a specific state law protecting Fourth Amendment rights in the face of new communications technology cannot be understated. Currently, the federal circuit courts of appeal are split on whether obtaining cell phone tracking data requires a warrant or not. The current rule in the U.S. Court of Appeals for the 10th Circuit, which covers Utah, is tenuous. In a recent case last March the court merely assumed that “pinging” a cell phone to obtain location data constitutes a search and thus required a warrant after a showing of probable cause. However, the court did not make an explicit ruling or decision beyond this mere assumption that pinging a phone to obtain location data was a search. Additionally, in this particular case the court ultimately upheld the investigator’s acquisition of cell phone tracking data as within the scope of their existing warrant. Perhaps more troubling is that the court also acknowledged that police and investigators cannot be assumed to have notice of a requirement to obtain a warrant for cell phone tracking because “the law on electronic surveillance is very much unsettled.” Other court decisions have ranged from upholding warrantless cell phone tracking explicitly to equally tenuous decisions like that of the 10th Circuit.

Despite whether a handful of justices think that such surveillance requires a warrant or not under the Fourth Amendment, such judicial uncertainty does not prevent a state from disagreeing and explicitly codifying such a requirement. While interpretation, application, and ultimately arbitration of the Constitution in a particular case has become a major role for the court, they are not the only interpreter of constitutional actions. States and other branches of government can, at any time, act to uphold constitutional principles on their own accord without the order of a court. James Madison noted that “nothing has yet been offered to invalidate the doctrine that the meaning of the Constitution may as well be ascertained by the Legislative as by the Judicial authority.” So, in the case of the “unsettled” law on electronic surveillance, in Utah, HB 128 is a step in the right direction to settle the law on electronic surveillance.

At a federal level, Representative Jason Chaffetz is the sponsor of federal legislation to ensure Fourth Amendment protections for cell phone location data. If passed, HR 1312, The Geolocational Privacy and Surveillance Act would do some of the same things as HB 128, and more, at the federal level.

While we applaud these legislative efforts to assert Fourth Amendment rights, it seems that a simple reading of the Fourth Amendment should have been sufficient in the first place. Moreover, the rule for the collection of location data for surveillance and tracking purposes should be an obvious one after the recent landmark Supreme Court case US v. Jones where the court decided unanimously that the attachment of a GPS device to a vehicle in order to track its movements constitutes a search under the Fourth Amendment requiring a warrant. In the Jones case the court explained that Jones’ car was an “effect” that police encroached on when they placed the GPS device, thus violating his Fourth Amendment right to be secure in his effects from unreasonable or warrantless searches.

In her concurring opinion for the Jones case, Justice Sonia Sotomayor wrote that “the government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the government, in its unfettered discretion, chooses to track—may alter the relationship between citizen and government in a way that is inimical to democratic society.” The state’s ability to track our every move inverses our relationship; rather than empowering and overseeing government, citizens becoming subject to it.

While it might seem clear to some that this decision on vehicle tracking would extend to prohibit the use of cell phone tracking without a warrant, the Jones ruling was based largely on the trespass doctrine rather than the reasonable expectation of privacy doctrine. In other words, when police encroached on the vehicle to place a tracking device, it was unreasonable because of traditional notions that prohibit trespass against the property of Jones. The court largely left open the issue of one’s reasonable expectation of privacy or of the reasonableness of police using cell phone location data, particularly when that data is obtained via subpoena from a third party. Some justices acknowledged that it would be an issue decided based on societal expectations in the future. Thus, this decision creates more reason for citizens, state legislatures, and Congress to assert their expectations of privacy now—before the widespread deployment of this surveillance technology by police. If a state has a statute protecting such privacy interests of its citizens it would be hard for the government to explain in court that there was no reasonable expectation of privacy.

In practical terms, a right not exercised is soon lost.

The use of new and proprietary technology by police has also revealed new challenges for public oversight in the use of government authority. As if the lack of a warrant for using this technology was bad enough, police have hidden the use of this technology from the public and the courts under the veil of non-disclosure agreements with the manufacturer. This is a similar problem to the use of private contractors in outsourcing core government activities. Such outsourcing can lead to reduced transparency and oversight of government activity.

Also amusing was the irony of Harris Corporation, the creator of the Stingray surveillance device, taking umbrage at the efforts of citizen watchdogs to legally watch them at their headquarters in Florida. What’s good for the goose should be good for the gander—but Harris Corporation and even Congress don’t like being spied upon, yet have long been okay with enabling the government to spy upon others.

Despite rapidly advancing technology, fundamental principles do not change. Might does not make right, and technology does not give a license to the government to surveil your every move. The framers of our constitution were visionaries who attempted to create a charter of negative liberties designed to adequately constrain government action so as to protect fundamental rights. At times it is necessary to give specific instruction to government actors who prove themselves unable to adhere to the principles of the Constitution. Libertas Institute exists to lend a watchful eye and a warning voice for such principles.