• Ozzie Paez

The Court, technology and privacy


The Supreme Court of the United States (SCOTUS) reentered the technology arena just one day after ruling that States can collect taxes from Internet retailers located outside State boundaries. In a win for privacy advocates, the Court ruled that cell phone location data is private and subject to Fourth Amendment protection:

US Constitution, Amendment IV: 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.[1]

The government had argued that cell-site location information (CSLI) collected by mobile phone companies were business records. It further asserted that under the third-party doctrine, individuals have a “reduced expectation of privacy in information knowingly shared with another.” The 5-4 decision written by Chief Justice Roberts rejected both arguments. Interestingly, the conservative Roberts joined the four most liberal judges on the court in setting the new privacy protection standard.

Writing for the majority, the Chief Justice described CSLI records as “detailed, encyclopedic, and effortlessly compiled.” He wrote that a “majority of the Court has already recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements. Allowing government access to cell-site records—which “hold for many Americans the ‘privacies of life,’… contravenes that expectation. In fact, historical cell-site records present even greater privacy concerns than the GPS monitoring… They give the Government near perfect surveillance and allow it to travel back in time to retrace a person’s whereabouts, subject only to the five-year retention policies of most wireless carriers.”[2]

The Chief Justice acknowledged the challenge posed by advancing technologies:

“We have kept this attention to Founding-era understandings in mind when applying the Fourth Amendment to innovations in surveillance tools. As technology has enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes, this Court has sought to “assure[ ] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.”… For that reason, we rejected… a “mechanical interpretation” of the Fourth Amendment and held that use of a thermal imager to detect heat radiating from the side of the defendant’s home was a search… Because any other conclusion would leave homeowners “at the mercy of advancing technology,” we determined that the Government—absent a warrant—could not capitalize on such new sense-enhancing technology to explore what was happening within the home.

Likewise in Riley, the Court recognized the “immense storage capacity” of modern cell phones in holding that police officers must generally obtain a warrant before searching the contents of a phone.”[3]

Trump appointee Neil Gorsuch’s dissent strangely sounded like agreement. He wrote that the Court should reject the third-party doctrine established in an earlier case. He wanted the majority to consider CSLI data the equivalent of personal records already covered by Fourth Amendment protections. Gorsuch wrote that “it seems to me entirely possible a person's cell-site data could qualify as his papers or effects under existing law.”[4] Fourth Amendment protections in the aftermath of the decision are much stronger than the 5-4 ruling would indicate.

Implications

SCOTUS is struggling to make sense of Constitutional protections in light of technologies not envisioned by the architects of the Constitution. The court will be repeatedly challenged in future cases by disruptive technological innovations such as Artificial Intelligence (AI), machine learning and autonomous machines. These systems are not designed to produce predictable decisions, responses and behaviors. Their actions mimic human decision-making. They are also composed of layers of software and information from different sources. In this context, assigning responsibility and liability is complicated because system behaviors emerge out of their components’ complex systemic interactions. Precedents will eventually emerge. In the meantime, designers, manufacturers and users of smart technologies will face many uncertainties in quantifying and mitigating related risks.

References

[1] Forth Amendment, Legal Information Institute, Cornell University, accessed on June 23, 2018, https://www.law.cornell.edu/constitution/fourth_amendment

[2] Carpenter vs. United States, pages 1-2, June 23, 2018, Supreme Court of the United States, https://www.supremecourt.gov/opinions/17pdf/16-402_h315.pdf

[3] Carpenter vs. United States, pages 6-7.

[4] Damon Root, Huge Win for Everyone With a Cellphone (and for the Fourth Amendment) at the Supreme Court, June 22, 2018, Reason, https://reason.com/blog/2018/06/22/scotus-rejects-warrantless-tracking-of-c

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