Digital Age Reshaping Privacy, Constitutional Protections

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By Jessica DaSilva

Aug. 5 — The type of information we store digitally, how we protect it, and who we grant access are the questions driving modern search and seizure law, according to a panel of lawyers and legal professors.

What about data on a laptop outfitted with state of the art security programs? Or someone whose password is “password123”?

And what does it mean to share your information with a third party, when having a phone, accessing the internet or getting directions to a friends house from your GPS might all involve disclosures?

Digital Footprints

Joshua L. Dratel, a New York City criminal defense attorney, said the traditional notion of the Fourth Amendment has been that it “protects people not places.” Yet certain Fourth Amendment doctrines actually focus on information rather than people, he said Aug. 5 at the American Bar Association's Annual Meeting.

The third party doctrine, which makes an exception to Fourth Amendment protection for information shared with a third party, doesn't adequately apply in the modern era, Dratel said. Often, voluntariness is undermined because interacting in the world typically involves sharing information, he said.

“Every act we perform leaves a digital footprint,” and when those kernels of information are amassed, they create a detailed picture of someone's life and activities, he said.

Georgetown Law Professor Laura Donohue agreed, saying that oftentimes people are unaware of the types of data that gets shared from their devices. Android's flashlight application shares location data, Donohue cited as an example.

“So one of the questions is whether this is actually a consensual participation in a digital neighborhood,” she said.

The government uses the idea of a digital neighborhood to argue in favor of collecting public information using advanced technology, such as a GPS tracker on someone's car, she said.

The government argues it should not need to “close their eyes and cover their ears” to information available to anyone's neighbor, Donohue said.

The problem with that argument is the government “is not the same as a neighbor,” she explained. “It’s the equivalent of a creepy stalker dude following you around and recording everything you do.”

Lack of Analogies

The difficulty with protecting information, especially with storage-based technologies like cloud services, is finding the right measurement for invoking a privacy interest, Dratel said.

Dratel theorized that the question could turn on the particular privacy and security mechanisms people use to protect their information. But that could bring its own set of problems, he added.

For example, wealthier Americans are able to spend more to protect their data, Dratel said. If the better-protected data is entitled to more privacy, that could create a class distinction resulting in unfair applications of Fourth Amendment rights, he explained.

The issue of comparison is also problematic for courts as they try to apply existing Fourth Amendment doctrine to modern technology, said Elizabeth E. Joh, a professor at the University of California Davis School of Law.

In the past, Joh said judges have made comparisons to pockets or briefcases. But the difference between containers and new technological devices leaves judges without comparable analogies, she said.

“It's like saying riding on horseback is riding a rocket to the moon,” Joh said. “How do you reconceptualize the Fourth Amendment for this different kind of world?”

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