Privacy in the digital age

Privacy in the digital age

January 29th, 2012 in Opinion Times

The U.S. Supreme Court struck a major blow in support of the Fourth Amendment last week when the justices unanimously ruled -- though in two overlapping opinions -- that police use of modern digital technology, such as GPS tracking of suspect's car, still requires a search warrant as specified in the Constitution. The critical question the court left open was how broadly Fourth Amendment rights will apply in the digital age, when so much personal information is commonly granted by individuals under varying circumstances.

The court's ruling came in a case involving the owner of a Washington, D.C., nightclub, whom police suspected of participation in a cocaine-sales ring. Acting without a warrant, police placed a GPS tracking device on his Jeep Cherokee and monitored his movements for a month, gathering evidence they used to get him convicted, and sentenced to life in prison, for conspiring to sell cocaine.

Prosecutors won the trial court conviction on the argument that they merely used digital technology to supplant real-life the allowable following of the suspect by actual police personnel. On appeal, the U.S. Court of Appeals for the District of Columbia overturned lower court decisions on the grounds that a proper search warrant was needed before police could legally install a GPS device on his car which, as personal property, was protected against a warrantless police search.

The only division among the nine justices of the high court was whether it mattered that intrusion on physical property, such as the defendant's car, was the issue that triggered Fourth Amendment rights against an unreasonable search. The five justices who agreed it mattered that the police had "physically occupied private property for the purpose of obtaining information" included Justices Antonin Scalia, the controlling opinion's author; Chief Justice John Roberts, and Justices Anthony Kennedy, Clarence Thomas and Sonia Sotomayor.

In a concurring opinion, written by Justice Samuel Alito and signed by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan, Alito argued that the issue was not intrusion of the car, but the modern standard of a reasonable expectation of privacy from unreasonable searches under the Fourth Amendment.

Significantly, Scalia's opinion seemed to accept that view that a "property-rights" focus as the underpinning of the Fourth Amendment may have passed. "It may be," he wrote, "that achieving the same result, without an accompanying trespass, is unconstitutional invasion of privacy, but the present case does not require us to answer that question."

Justice Sotomayer, expressed no doubt about that potential barrier. "Physical intrusion is now unnecessary to many forms of surveillance," she emphasized in joining Scalia's majority opinion, but giving potential majority weight to Alito's opinion. "It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties," she wrote.

This welcome aspect of the court's decision and close debate clearly suggests the troubling dimensions of potential police searches in the digital age. People now accept conveniences -- i.e., cellphones that leave easily accessible call records, locations, dates and times; automobile GPS systems that track and digitally record routes and locations to enable roadside assistance options; credit card use that similarly tracks a customer's activities and whereabouts; and computers that store visited URL's, emails and other personal information.

The rich trove of revealing personal data available in the digital age is generally not granted by individuals for police surveillance and inspection, nor is it generally intended for unauthorized third-party. It shouldn't require a Supreme Court decision to affirm the privacy of such data, but it seems destined to come to that. With the cloud of unwarranted police inspection of our private digital data hanging in the balance, the court's decision to affirm application of the Fourth Amendment to the digital age is a hugely welcome ruling.