Human Property

The Obama Administration is arguing before a federal appeals court that the government can track individuals through their cell phones without a warrant because there is no “reasonable expectation of privacy” in their cell phones’ whereabouts.

Articles in CNet and Newsweek describe the government’s increasing ability to turn a person’s cell phone into a “surreptitious tracking device.”

There are two main ways to track you through your cell phone.  The first is to look at phone records that show the corresponding cell phone towers that connected a specific phone call.  The second is to use the GPS within your phone as a real-time tracking device.

The government is increasingly asking for these records as part of government investigations.  Seattle attorney Al Girdari tells Newsweek that telecommunication companies are now getting “thousands of these requests per month,” and the amount has grown “exponentially” over the past few years.

Last year, a federal judge denied the government’s request for these records and ruled that under the 4th Amendment, a finding of probable cause and the issuance of a warrant was required.

Now, before an appellate court, the government is arguing that a search warrant is not necessary because the records provide “only a general indication of the user’s whereabouts at certain times.”

In examining this issue, an appellate court will look at what society considers its “reasonable expectations of privacy” related to the government activity in question.  This is a flexible analysis where a court really looks at social practices based on technological developments and the impacts of those developments on society.

Back in the old days, if you made a phone call you would either do so from your home or go to a telephone booth.  The fact that you shut the door behind you in a telephone booth was the reason why the Supreme Court found a “reasonable expectation of privacy” in a phone conversation and required a warrant for phone taps in the 1967 case Katz v. United States.

Today, people use cell phones out in the open and talk all over the place.  This is purely a function of new technology:  phones are portable and don’t need wires.  Is there a lower “reasonable expectation of privacy” with cell phones just because you can use them anywhere?  The Obama Administration believes so.

Is it really the case that our Constitutional rights can change so much — and in such a small historical period of time — simply because of new inventions?

Then again, when it comes to privacy, how else can you determine what people think is “private” without looking at current attitudes and behaviors?

Reasonable people may disagree on societal expectations of privacy, but government should always err on the side of more privacy protections and not less.  The Obama Administration’s stance on this issue is disappointing.  Police are entitled to adequate tools to conduct their investigations, but the requirement of a warrant is hardly an impediment towards those aims.  Judicial scrutiny of government action is the hallmark of a functioning democracy.  If the 4th Amendment has any real weight in our technological society, it would surely prevent a government official from tracking you through your cell phone without a warrant just because you might bear some relevance, however tangential, to the investigation of a crime.

Courts continue to wrestle with the impacts of technological development on the Constitution, especially rules governing police investigations and the use of evidence.

Pretend that you are under investigation for securities fraud, and the government seizes your computer.  While searching your computer, they uncover your stash of music you’ve obtained off of The Pirate Bay.  Can this evidence be used against you in a totally separate indictment for copyright infringement?

Back in August, the Ninth Circuit put strict limits on what police can and cannot do when executing a warrant for electronic data.  The case involved a police investigation into steroid use in Major League Baseball.  During the course of the investigation, the police discovered 10 names of players who had tested positive for steroid use.  The police obtained a warrant to seize the computer records for these 10 players at a testing laboratory, but in executing the warrant, then seized the records for hundreds of other baseball players, as well as many other people.

On appeal, the Ninth Circuit found that the government had overreached and offered guidelines for the investigation of electronic data, including having a third party segregate and review the data before handing over anything relevant to the government:

The procedure might involve, as in this case, a requirement that the segregation be done by specially trained computer personnel who are not involved in the investigation.

…

Once the data has been segregated (and, if necessary, redacted), the government agents involved in the investigation may examine only the information covered by the terms of the warrant. Absent further judicial authorization, any remaining copies must be destroyed or, at least so long as they may be lawfully possessed by the party from whom they were seized, returned along with the actual physical medium that may have been seized (such as a hard drive or computer).

United States v. Comprehensive Drug Testing, Inc., slip op. No. 05-10067, 17-18 (9th Cir. 2009)

The government relied on the “plain view” doctrine in seizing the records of other individuals.  The “plain view” doctrine permits a police officer to gather evidence of a crime if it is in plain view.  When an officer executes a warrant to look for evidence of theft, and comes across your stash of marijuana, you can be indicted for drug possession even though the warrant was for something else entirely.  So, the government argued that when they went to seize the records for the 10 individuals, the rest of the records for everyone similarly came into “plain view”.

Judge Kozinski did not take too kindly to this argument:

Since the government agents ultimately decide how much to actually take, this will create a powerful incentive for them to seize more rather than less: Why stop at the list of all baseball players when you can seize the entire Tracey Directory? Why just that directory and not the entire hard drive? Why just this computer and not the one in the next room and the next room after that? Can’t find the computer? Seize the Zip disks under the bed in the room where the computer once might have been. See United States v. Hill, 322 F. Supp. 2d 1081 (C.D. Cal. 2004). Let’s take everything back to the lab, have a good look around and see what we might stumble upon.

Id. at 13-14.

Now, in a move that is angering some privacy advocates, Solicitor General Elena Kagan has asked all 27 judges on the Ninth Circuit to reconsider its opinion.  Kagan argued in a reconsideration brief last week that the Ninth Circuit’s opinion has put a halt to computer searches and should be overturned.

No one would argue that police need appropriate tools to conduct investigations in an electronic age.  But in the words of Judge Mahan, one of the federal District Court judges who heard one of the initial government motions, “What ever happened to the Fourth Amendment? Was it . . . repealed somehow?”  Permitting the government to seize anything and everything merely because it resides on a computer ignores the reasonable expectations of privacy that people now expect about their electronic files.

It also ignores the reams of personal information that people now place on computers.  No longer do people keep separate diaries, separate file cabinets, separate folders for expenses — what used to be separate and distinct (and readily distinguishable for purposes of a warrant) are probably all now kept in the “My Documents” folder.

Defendants in police investigations should consider arguments that government agents executed a warrant too broadly — thereby excluding the evidence in question.  All too often, counsel make the mistake of attacking the evidence before asking if the evidence is even admissible.  With technology advancing so quickly, government overreaching will look different than it did in an age of file cabinets and paper boxes.

Is access to the internet a civil right?  Are we entitled to the internet merely on account of citizenship?

In the United States this might be akin to asking whether cable TV is a civil right.  It just seems like an odd question to ask.

But other countries have taken this question seriously, and in many instances have concluded that access to the internet is a basic right.

This past October, Finland became the first country to declare high speed internet access a legal right.  The Finnish law requires that by 2015, every Finn must have internet access equivalent to 100 mb per second.

In June, a top French court declared access to the internet a basic human right guaranteed by the Declaration of Human Rights.  As such, the French court held that it was impermissible for France to deny internet access to individuals who were merely accused (but not convicted) of online piracy.

Estonia, a small Baltic country that borders Russia, passed legislation close to 10 years ago declaring internet access as a fundamental human right.

Will the United States follow suit with these other countries?  Congress seems unlikely to pass any type of law law guaranteeing internet access; there just didn’t seem to be any pressure or reason to do so.  As in France, the issue would probably come up before a court.  Here are a few hypotheticals that might lead a court to consider this question:

• Illinois is currently pondering a law that would ban registered sex offenders from accessing “social-networking Web sites“.  Would such a ban be constitutional?  Can a state prohibit people from accessing information and websites online?  Would this be an illegal restraint on the First Amendment’s guarantees of freedom of expression, or freedom of association?  The First Amendment guarantees people the right to say what they want in public forums subject only to time, place and manner restrictions.  Is the internet a public forum?  Or is it akin to a private mall which can kick you out at any time?  Answering this question may require a technical analysis as to who “controls” the internet — is it a private or government function?

• In addition to First Amendment issues, are there potential legal issues on account of the Equal Protection Clause?  The Equal Protection Clause of the 14th Amendment (passed after the Civil War) provides that all Americans are entitled to equal protection of the law:  no single group can be unfairly singled out for exclusion from constitutional rights.  Would the Illinois law present a case of an unfair restriction of a group of people without any rational basis?  It may seem unlikely that the Supreme Court would protect sex offenders from exclusion, but just a few years ago the Supreme Court held that a Colorado law which deprived gay people of legal rights was grossly unconstitutional as it unfairly targeted a group of people from protection of the law (Romer v. Evans, 517 U.S. 620 (1996)).

• Let’s assume that the Illinois law passed constitutional muster.  Could Illinois take the next step and ban all internet access for registered sex offenders?  The same First Amendment and Equal Protection Clause issues would appear to present themselves once again, but with greater force.  Let’s further assume that a court would OK restrictions on sex offenders to access the internet — can a state then restrict internet access for other groups?  Could a state pass a law barring convicted terrorists from accessing the internet?  How about alleged terrorists?  Many states already restrict convicted felons from voting and possessing hand guns — deeply fundamental rights in America.  Even if internet access were a fundamental right, it would seem internet restrictions caused by convictions might pass constitutional muster.  Is this right?

• Here’s another hypothetical that may be a reality before long.  Suppose the RIAA is able to successfully lobby Congress to pass a “three-strikes” bill that requires internet providers to restrict internet access to individuals who have been caught pirating materials at least three times.  Would it be constitutional to restrict internet access across the board to convicted online pirates?  This was the issue before the French court in June, and it found that that the law as written was too broad because it deprived people of judicial review.  If a jury finds you guilty three times of online piracy, can you be banned from accessing the internet for good?