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.

The development of electronic book readers like Amazon’s Kindle raises interesting questions about the future of books.

The portable nature of the book has been its greatest advantage as a tool.  You can hold onto a book for a long time and freely share it with someone else.  You can read it as many times as you’d like.  If what you’re reading is considered dangerous, you can hide it.  Books are small but possess a lot of power and influence.

The only restrictions imposed on book ownership are those placed by copyright laws.  These restrictions are relatively minor.  You have to purchase the book once, and you can’t make copies of it and sell it to someone else.  That’s about it.  You are even permitted to resell the book without any trouble, a concept known as “first-sale.”

Some companies are attempting to use technology as a way of changing the relationship to the book.  The current restrictions on the Kindle, for example, attempt to change that relationship.  Instead of purchasing a copy of the book, you are actually purchasing a license to view it on your Kindle.  You are not permitted to transfer downloaded copies of e-books to others, thus restricting the right of first sale.

In short, you’re not really buying a book — just the limited right to view its contents.  This is a lot of power for Amazon to maintain over book ownership, and it carries some disadvantages.  Amazon got into hot water about its behavior when it deleted copies of 1984 from hundreds of Kindles.  People were up in arms, even though Amazon had credited back the affected accounts.  Some line had been crossed by Amazon when it manipulated the data after selling it.

Google, as well, wants to change the relationship with the book.  Google has been scanning millions of pages into a large database which it hopes to make searchable to the public — a veritable digital library.  Despite the balking of other companies and even the government, Google seems set to make a deal with the Justice Department and other online competitors over its plan.  Google would prefer that we read books through some service.  It remains to be seen if people will want what Google plans to offer.

But there, too, relationships may be shifting.  If Google is planning a searchable library, will privacy become an issue?  Consider the provisions of the Patriot Act that permit the government to access library records of individuals through National Security Letters:  would Google’s library be subject to review by the US government for certain search terms?  Do you risk surveillance with Google’s digital library that would never be a concern by merely reading a copy of that book in the local library?

Companies should certainly innovate when it comes to books, but they need to consider the fact that old habits die hard.  The Kindle seems like a book, but Amazon made clear that it really wasn’t a book — at least in terms of what people are used to.  And if privacy ends up out the window with Google’s new digital library scheme, people may soon realize that the digital library is a lot less comfortable than the brick-and-mortar version.

Companies should thus be careful with how they package their products.  The common law may provide plaintiffs with avenues against companies that package their products with new, unfamiliar restrictions.  A jury may very well believe that the product known as the “book” carries certain privileges attached to it — ones that can’t be trampled on.

Maybe this is why Amazon settled a lawsuit stemming from the 1984 debacle for $150,000 for the two plaintiffs.  Those numbers can add up.