The Government Can Monitor Your Location All Day Every Day Without Implicating Your Fourth Amendment Rights

by on February 11, 2010 · 13 comments

If you have a mobile phone, that’s the upshot of an argument being put forward by the government in a case being argued before the Third Circuit Court of Appeals tomorrow. The case is called In the Matter of the Application of the United States of America For An Order Directing A Provider of Electronic Communication Service To Disclose Records to the Government.

Declan McCullagh reports:

In that case, the Obama administration has argued that Americans enjoy no “reasonable expectation of privacy” in their—or at least their cell phones’—whereabouts. U.S. Department of Justice lawyers say that “a customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records” that show where a mobile device placed and received calls.

The government can maintain this position because of the retrograde “third party doctrine.” That doctrine arose from a pair of cases in the early 1970s in which the Supreme Court found no Fourth Amendment problems when the government required service providers to maintain records about their customers, and later required those service providers to hand the records over to the government.

I wrote about these cases, and the courts’ misunderstanding of privacy since 1967′s Katz decision, in an American University Law Review article titled “Reforming Fourth Amendment Privacy Doctrine“:

These holdings were never right, but they grow more wrong with each step forward in modern, connected living. Incredibly deep reservoirs of information are constantly collected by third-party service providers today. Cellular telephone networks pinpoint customers’ locations throughout the day through the movement of their phones. Internet service providers maintain copies of huge swaths of the information that crosses their networks, tied to customer identifiers. Search engines maintain logs of searches that can be correlated to specific computers and usually the individuals that use them. Payment systems record each instance of commerce, and the time and place it occurred. The totality of these records are very, very revealing of people’s lives. They are a window onto each individual’s spiritual nature, feelings, and intellect. They reflect each American’s beliefs, thoughts, emotions, and sensations. They ought to be protected, as they are the modern iteration of our “papers and effects.”

This is a case to watch, as it will help determine whether or not your digital life is an open book to government investigators.

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  • http://archlever.blogspot.com/ Jeff Dickey

    Scary as hell on a hot day. We voted Obama in with the idea that he would work to restore the damage that had been done our country, and specifically our Constitution, during the Long March off the Right-wing Cliff. Lately, though, his administration seems to be doing exactly the opposite; Cheneyism with a more telegenic face. I'd hoped to be able to move back to my home this year or next; it's increasingly hard to see that happening.

  • Pete

    Not only do we need to reconsider the “third party doctrine” (and I agree with Mr. Harper that from the beginning the doctrine was based on a fundamental misunderstanding of the holding in Katz), I would argue that we should also consider whether data service providers (whether telcos with my location stream or Google with its truckloads of my private data) should stand in an almost fiduciary relation to their customers in terms of how they use and disclose the data (whether to the government or to third parties)

  • Pete

    Not only do we need to reconsider the “third party doctrine” (and I agree with Mr. Harper that from the beginning the doctrine was based on a fundamental misunderstanding of the holding in Katz), I would argue that we should also consider whether data service providers (whether telcos with my location stream or Google with its truckloads of my private data) should stand in an almost fiduciary relation to their customers in terms of how they use and disclose the data (whether to the government or to third parties)

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