For the professional edge in your day-to-day practice, rely on the most timely, objective reporting on significant developments, trends, and emerging patterns in criminal law today—Criminal Law...
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?
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.”
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?”
To contact the reporter on this story: Jessica DaSilva at firstname.lastname@example.org
To contact the editor responsible for this story: C. Reilly Larson at email@example.com
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)