|THE FOURTH AMENDMENT V. THE SURVEILLANCE STATE: A SYNOPSIS AND A SOLUTION|
What can the government lawfully learn about us, without our consent or a court warrant? That is the question explored below. The answer, constitutionally, is largely confined to the Fourth Amendment:
"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."
JUDICIAL INTERPRETATION WITHOUT A COMPASS
The original language is clear, but its judicial interpretation has a stumbling history. It wasn't until 1914 – more than 120 years later – that the Supreme Court affirmed the amendment's plain intent that a warrantless search of a home is unconstitutional, while adding as a deterrent that evidence thus obtained is inadmissible. It was 1961 before Fourth Amendment strictures were applied to state and local government, and 1967 before warrantless telephone wiretaps were outlawed. In 1976, reversing course, the Supreme Court decided that government could examine our bank records without warrant; in 1979, that the government could track our telephone use without warrant. Since then, Fourth Amendment rulings have (more times than not) eroded privacy protections, whether about searches on the street, from the air, using remote devices, in a car, upon arrest, detention, even a traffic violation. Now in the post-9-11 era, given the Patriot Act and a surveillance state that has understandably swelled in response to terrorism, the judiciary continues to stumble along. Why? Because it lacks an overarching constitutional interpretative principle – a legal compass – to guide its Fourth Amendment decisions.
How can we know this? Because the pair of Fourth Amendment principles most often employed as interpretative precedents are either misapplied (in the case of #1 below), or simply wrong (#2):
1. Government needs a warrant to search in a context where the public has a "reasonable expectation of privacy."
2. When communications between parties use a third-party intermediary or facilitator (e.g., a phone company, internet provider, bank), the information the third-party is given to know is not private; therefore the government does not need a warrant to search it. This is commonly referred to as the "third party doctrine."
THE ESSENCE OF PRIVACY, AND THE MEANING OF 'SEARCH'
Before we examine these two legal principles, the notion of privacy (which pervades the discussion) should be clarified. Take, for example, the way we use the word in the expression "private property." When we say "private property" we primarily mean (among other things) a space from which others can be physically excluded. That is the essence of privacy: the ability to exclude others from a physical area like a piece of property, or to exclude others from control over or knowledge of aspects of one's own life. The exclusion of others from aspects of one's life can take many forms. It may mean simply to be left alone, unmolested; or the ability to make decisions for oneself (abortion, suicide); or in the case of searches (our subject here), the ability to keep information about oneself secret from others. That is what we consider our private realm: to restrict others from entering our private space, or making decisions for us and dictating our actions, or even acquiring information about us we wish to keep to ourselves.
Also on the subject of words and concepts essential to this discussion, clarity should be brought to the often tortured legal meaning given to the notion of a 'search.' In common parlance, whenever we search, we are looking for something, or more generally, seeking to acquire information. It doesn't matter how the search is conducted. It may be done in any manner, with any device, at a distance or not. It can be done in a laboratory, using the internet, or with a telescope, by looking in a desk, or over a fence, or digging in the ground. Whenever and however we are looking for something (perhaps we know not what), we are searching for and seeking out information.
Judicial interpretation of the Fourth Amendment has unnecessarily confused the issue by conflating the notion of a search with that of a physical invasion. So in some key legal decisions, the outcome has turned on whether an investigation was done remotely, at a distance, without physically entering or invading a "constitutionally protected area," in which case it has not been considered a search, and thus not subject to Fourth Amendment warrant strictures. Using this ruse, a bug placed in one's living room would be considered a search, but a remote high-tech listening device used at a distance might not be. This is a legal sleight-of-hand, and should be abandoned in favor of the commonly understood meaning of a search: any effort intended to look for something.
1. "A REASONABLE EXPECTATION OF PRIVACY"
In Katz v. United States (1967), a man making calls from a phone booth, involving betting transactions, was taped without warrant by a bug attached to the outside of the booth. The evidence thus acquired was thrown out at the Supreme Court, where it was reasoned that the man, being in a phone booth, had a reasonable expectation of privacy. This was a landmark decision, because he wasn't in his home, just in a space that was obviously designed for a modicum of privacy.
The legal reasoning overshot its target however, because it depended in part on discerning the man's actual expectations of privacy. That can't be the deciding factor, because another person in exactly the same position, behaving in exactly the same way, only with possibly a different set of expectations, shouldn't receive an opposite legal outcome. Besides, who can really divine what one person's expectations actually were at the moment of surveillance? So long as the person took the elementary precautions to ensure privacy (closed the booth door, didn't shout into the mouthpiece or otherwise draw undo public attention to his conversation), the assumption is that privacy was expected.
The kernel of legal reasoning that had staying power wasn't the individual's expectations; rather it was the justices' recognition that society has a reasonable expectation of privacy when entering a phone booth, or performing some other activities. Like a bathroom stall with a door, a phone booth is recognized by society as private by design.
Here we arrive at the crucial question about this legal yardstick: is it society's expectation that some situation or context is in fact private, or that it should be private? In other words, is the legal yardstick – society's reasonable expectation of privacy – factual ("it is private") or normative ("it should be private")?
FACTUAL EXPECTATIONS OF PRIVACY: A FOURTH AMENDMENT TRAPDOOR
Simply put, it can't be factual, because we are rapidly entering a technological age where anything and everything can conceivably be surveilled. Private conversations and physical activity anywhere, including inside homes, can already be remotely and minutely searched and recorded. Our unexpressed thoughts are the only things in our lives that we can factually expect to be truly private, and for all we know the clock may be ticking down on that final frontier as well. Bottom line: any legal principle that hangs on what society can actually, factually, expect to be private, given the rapid advance of surveillance technology, would push the Fourth Amendment through a trapdoor. Privacy rights cannot be inversely proportional to the march of technology, without shriveling to nothing.
NORMATIVE EXPECTATIONS OF PRIVACY: A FOURTH AMENDMENT PRINCIPLE
If the answer to the question above is that society has a set of reasonable expectations of what should be private, and that those expectations should provide the yardstick for adjudicating Fourth Amendment issues, what if we (society) disagree on what should be private? What if there is no general consensus on a particular privacy issue?
If there is no societal consensus on a privacy issue, then on that issue, society has no reasonable expectation of privacy. We do not need an obviously unattainable unanimity, but an overwhelming consensus, in order to determine that society has a reasonable expectation of privacy concerning an activity or context.
There are many examples of privacy consensus across society. We agree that what we do in our homes should be private, if we pull our shades; that our conversations should be private, if conducted out of others' earshot; that our dealings with our doctors, or shrinks, or lawyers, should be confidential; that neighbors should not look at or open our mail; that our computers and electronic devices should not be hacked; that doors on private bathrooms, and public bathroom stalls, should be lockable; and on and on.
Indeed, a working definition of "reasonable" expectations is that society has a consensus; if there is no consensus, the expectation is almost by legal definition not reasonable. Almost, but not quite, because if some of us can convince most of us that something should be considered private, and thereby change people's minds and form a new consensus, a new "reasonable expectation of privacy" is thereby created, and the privacy realm is expanded.
Our society's consensus on privacy issues has inevitably evolved over time. In fact, contrary to some recent punditry, our society has been rapidly expanding – not shrinking – its privacy-realm consensus over the last decades, evolving toward a less invasive, more private society. Routine prying questions from yesteryear, when seeking a job or housing or medical assistance or an education or social benefits, are now piles of illegal relics. Over the same decades we have even had a flock of fairly controversial legal innovations, such as exclusionary rules of evidence, or Miranda rights, or contraceptive and abortion rights, that arguably did not reflect a societal consensus, but that nevertheless expanded the privacy realm for individuals in a variety of directions. Privacy rights, consensus or no, like them or not, have been expanding throughout our history.
A ONE-STANDARD "PRIVACY PRINCIPLE" FOR BOTH THE PUBLIC AND GOVERNMENT
As a society, we have an elaborate (if often unspoken) consensus on reasonable expectations of privacy between ourselves. We do not have a separate set of reasonable expectations of privacy with respect to the government. As we do not consider it appropriate for the neighbor to read our mail, neither do we consider it appropriate for the government. We do not consider it appropriate for either our neighbor or our government to peer in our windows, or over a bathroom stall wall, or hack our computers, or listen in on our phone calls. Unless convinced otherwise, we simply do not operate – nor should we – with two distinct sets of expectations about what we should be able to keep private from the public on the one hand, and from the government on the other. The privacy standards that we maintain between ourselves, as members of society, are exactly the privacy standards that should be maintained between ourselves and our government, absent a court warrant based on evidence of criminal activity. There is no other standard, and should not be, because government, like the public, is a collection or organization of persons. This one-standard privacy principle can be stated in general form:
"Whatever the public cannot lawfully learn about someone without his or her permission, the government should not be able to learn without a court warrant."
By using society's consensus on reasonable expectations of privacy, applied as one unified standard for both the public and government, the courts will have a guiding principle that we are all familiar with, and automatically use every day to conduct our lives within society, to decide Fourth Amendment issues. Most important, it would destroy the pernicious "third party doctrine" that is currently used to legally condone an ever-expanding surveillance state.
2. THE THIRD PARTY DOCTRINE: THE MOTHER OF ALL PRIVACY SLIPPERY SLOPES
The third party doctrine – that the information provided by private communicants to a third-party intermediary is not itself private – is not a common sense doctrine, in that it is not intuitively obvious, nor based squarely on our reasonable expectations of privacy, and so must be motivated by looking at its modern impetus in two Supreme Court cases from the 1970s.
PRIVACY OF BANK RECORDS
The first, United States v. Miller (1976), involved the issue of whether the government may lawfully examine one's bank records without a warrant. A 5-4 majority upheld that ability, with the following reasoning:
"The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed."
This statement is erroneous in a number of ways. Its first sentence is based on reasoning from a Jimmy Hoffa case, where Hoffa unsuccessfully tried to have testimony from an undercover FBI informant excluded from his trial. Apart from tellingly analogizing the behavior of an FBI mole to one's bank, it states without qualification that any information revealed to a second party ('another,' even a doctor, shrink, or lawyer) can be lawfully revealed to the government, a nightmare scenario clearly to be avoided. The second sentence then slides from a discussion of a second party to that of a third party, which is presumably the position a bank assumes with respect to a depositor.
A bank is actually only a second party to a depositor, holding his or her money for safekeeping. In taking one's money from underneath the mattress into the bank to deposit, there is no third party. The bank becomes a third party if it is used to cash a check, or pay by check, or in our time, to also pay bills online. In other words, a bank can be solely a second party, if all one has is a savings account (or CDs, etc.). So the third party doctrine does not necessarily apply, while the second party justification is based on an FBI mole analogy, where the target is suspected of crime. Yet the Supreme Court ruled that the government may examine our bank records without a warrant, and without suspicion of a crime.
The minority dissent, now 37 years old, made a prescient warning:
"Development of photocopying machines, electronic computers and other sophisticated instruments have accelerated the ability of government to intrude into areas which a person normally chooses to exclude from prying eyes and inquisitive minds. Consequently, judicial interpretations of the constitutional protection of individual privacy must keep pace with the perils created by these new devices."
PRIVACY OF COMMUNICATIONS 'METADATA'
The Supreme Court decision most relevant to the current discussion of state surveillance is Smith v. Maryland (1979), which upheld the government's ability to gather information about one's phone calls, other than the words themselves, without warrant. In today's discussion, the words are referred to as the "content" of the call, while everything else (the time and length of the call, the telephone numbers involved and to whom they're registered, the communicants' locations during the call, etc.) is known as the "metadata." Current reasoning is that this Supreme Court ruling provides the best constitutional justification for warrantless surveillance of metadata, not only for telephones (land and cell), but also for all internet communications, or indeed any communications using a third-party intermediary. The reasoning is easily analogized to all non-cash financial activity, including credit and debit card transactions, as well as library borrowings, web browsing, satellite and cable television channel surfing and PPV, and USPS and special delivery mail and packages, all of which require third-party intermediaries.
Here is the kernel of the majority's opinion:
"When petitioner voluntarily conveyed numerical information to the phone company and 'exposed' that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information to the police."
And from a dissenting opinion:
"I think that the numbers dialed from a private telephone - like the conversations that occur during a call - are within the constitutional protection recognized in Katz. It seems clear to me that information obtained by pen register surveillance of a private telephone is information in which the telephone subscriber has a legitimate expectation of privacy." (A pen register was the device of that era used to surveil telephone metadata.)
The dissent correctly points out that collection of telephone metadata violates society's reasonable expectations of privacy, in 1979 as it does 34 years later (witness the recent public outcry). But that is not the elephant in the living room.
Look back at the Supreme Court majority opinions cited, where "...the Fourth Amendment does not prohibit the obtaining of information revealed to a third party..." and the public assuming "... the risk that the company would reveal the information to the police." Where's the elephant?
CONTENT AND METADATA ARE ALL THIRD PARTY INFORMATION
When one makes a phone call, or sends an email, or uses a social networking website to communicate with others, the information shared with the third party intermediary is not merely the metadata. It is the content of the message as well. That is the communicants' entire purpose for using the intermediary, to have it convey the message, which naturally cannot be transmitted without the message's actual content. So that the reasoning used above to justify surveillance of metadata, works equally well for surveilling content. Content is no less "exposed" to the third party's "equipment in the normal course of business" than is the metadata. And in the case of written internet communications, it is no less preserved.
There is no way around the fact that when communicants use a third-party intermediary, as we all do many times daily, all of the information – content and metadata – is communicated to and through the third party. And by the language of the controlling Supreme Court decisions cited above, it is all subject to warrantless search. If the third party doctrine were true, and universally and equally applied, all information held by a third party would be subject to warrantless search. Very little of our lives would remain private.
THE THIRD PARTY DOCTRINE V. THE PRIVACY PRINCIPLE
Whenever one uses a bank, credit card company, telephone or internet provider, library, postal or delivery service, doctor, shrink, lawyer, pharmacist, accountant, even a store or restaurant, one has a reasonable expectation that the third party will respect one's privacy, by not revealing the details of one's communications or transactions with other members of the public. These fiduciary relationships of trust are so universal and implied that we don't think about them. But they're there. Next time you get to the front of the line at the bank, or doctor's office, or pharmacy, or post office, or grocery store, ask the person helping you to tell you some of the juicy details of the last person they served, like why they're seeing the doctor, or what prescriptions they just picked up, or who they just mailed, or their credit card numbers, or even their name. Chances are the next person you'll be speaking to after that performance will be a security guard, and then the police. Our society takes very seriously the almost ubiquitous fiduciary obligations of confidentiality we assume in our relationships, whether personal or professional, business or pleasure.
In other words, the reasonable expectations of privacy we have developed toward one another are the polar opposite of the third party doctrine, which gives government warrantless and secret access to all information about us held by third parties, information that those parties are expected in normal circumstances to jealously protect from public view. This collision course – between the public's reasonable expectations of privacy and a mistaken legal doctrine blessing an ever-expanding surveillance state – can be avoided by employing the privacy principle stated above:
"Whatever the public cannot lawfully learn about someone without his or her permission, the government should not be able to learn without a court warrant."