"In a significant
victory for law enforcement, a federal appeals court on Tuesday said that
government authorities could extract historical location data directly from
telecommunications carriers without a search warrant. The ruling is the first that squarely addresses the constitutionality of warrantless searches of the historical location data stored by cellphone service providers." The 5th Circuit justified this under the theory that business records are not covered by the 4th Amend. This is contrary to a prior state court decision. The Supreme Court needs to step in. In these times of stress and fear, both the 4th and 2nd Amends are taking hit in the federal courts.
I agree with the federal appeals court decision mainly on the grounds that transmitted data becomes the property of service providers. For this reason, it falls out of the personal effects realm of the individual user as per the 4th Amendment's protection.
ReplyDelete44: Thanks for the comment. You are correct about the state of the law. For the 4th Amendment to apply, there must be a “search” or a “seizure.” This case involves searches. The courts use two alternative approaches to defining “seizure.”
ReplyDeleteThe first comes from the language of the Fourth Amendment. There must be some kind of intrusion on “persons, houses, papers and effects.” The evidence here was neither.
Second is the idea that there must be an intrusion into an area where the person has a reasonable expectation of privacy. This was the main test used in this case. The court, following precedent, concluded that because the person, in effect gave or exposed this information to the communications company, they gave up any reasonable expectation of privacy with regard to the info. Ergo, no REP and no 4th Amend. Protection. This is an example of an exception or exemption sometimes known as the business records exemption from 4th Amend. Protection. The problem with this theory is that expectations of privacy are not identical vis a vis a business and government. Businesses are not covered by the Fourth Amendment. We give the information to the business for a business purpose. We do not give it to them so they can share it with the government. We expect some loss of privacy when we voluntarily do business with a company. There’s nothing voluntary about our relationship to the government. The interests involved are different in each case. The business is not going to use the information for investigative purposes. There are other differences, but I hope you see the point. The issue should be more definitively phrased as whether the individual has a reasonable expectation of privacy vis a vis the government. All others are irrelevant.
From what you've stated, privacy rules like HIPAA and FERPA provide a reasonable model of protecting personal information gathered by private businesses. If this be the case, such records would still be open to judicial court orders, law enforcement investigations, and public safety concerns. NSA's collection of telecommunications data fits the latter category.
ReplyDelete44: Thanks for the comment. There is a crucial difference between allowing warranless searches and requiring search warrants. I have no problem if there is a valid search warrant. The warrant requirement adds an extra level of protection for the person.
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