Article on the Fourth Amendment in a Digital World (10/28/17)

I recently alerted readers to the Supreme Court's acceptance of certiorari in Microsoft Corp. v. United States, 829 F.3d 197 (2d Cir. 2016), reh. denied, 855 F.3d 53 (2d Cir. 2017).  The progress of the case in the Supreme Court can be tracked at the SCOTUSblog, here. My blog entry is Supreme Court Accepts Cert in Microsoft Involving Search Warrants for Emails on Foreign Servers (10/17/17), here. 

Since the application of the Fourth Amendment in the current environment where much of our private information, previously physically stored in our homes or other private places and thus subject to robust Fourth Amendment protection, is now on servers on the web and in the possession of third parties, there is a disconnect with historic Fourth Amendment analysis.

I recently read a helpful article on this subject and alert readers as to the article if they want to read more on this issue pending whatever learning the Supreme Court offers in Microsoft.  The article is Laura K. Donohue, The Fourth Amendment in a Digital World, 71 N.Y.U. Ann. Surv. Am. L. 553 (2017), here.  I excerpt some of the introduction  (footnotes omitted) for readers to see whether they might be interested in reading the article:

Fourth Amendment doctrine no longer reflects how the world works. Technology has propelled us into a new era. Traits unique to a digital world are breaking down the distinctions on which the Court has traditionally relied to protect individual privacy. 

What are these characteristics? Digital information is ubiquitous. Individuals cannot go about their daily lives without generating a footprint of nearly everything they do. The resulting data is accessible, recordable, and analyzable. And because it is digital, it can be combined with myriad sources, yielding deeper insight into our lives. Data is also non-terrestrial and borderless. Bits and bytes populate an alternative world. They may be held on a server, but their generation, transfer, and availability are not tied to territory, undermining doctrines that rely on three-dimensional space. Technology, moreover, embodies an efficiency drive. Innovation makes it possible to do more, and to do it better, faster, and cheaper than before. So more information is being captured, even as the resource expenditures required steadily decline. Simultaneously digital interfaces are rapidly proliferating, replacing traditional modes of interaction. This means that new types of information are available, even as our ability to conduct our daily lives has become heavily dependent on technology. It has become a non-option to eschew the digital world, if one wants to live in the modern age. 

These characteristics undermine the distinctions that mark Fourth Amendment doctrine. Consider, for instance, the diremption between private and public space. The Court has long relied upon this dichotomy to determine what constitutes a reasonable expectation of privacy. It draws a line at the walls of the home, citing the risk assumed by individuals when they go out into public and expressing a reluctance to disadvantage law enforcement by forcing them to turn off their natural senses or to ignore what any ordinary person could ascertain. 

The amount and types of information available in the public sphere, however, have exponentially increased. WiFi and Bluetooth signals can be collected, global positioning systems and vessel monitoring systems operated, and radio frequency identification chips tracked. Automated license plate readers record the time, date, and location of cars, while network data reveals where mobile devices travel day and night. International mobile-subscriber identity-catchers pinpoint the devices located in a given area. Internet protocol databases, in turn, register users' locations. Financial transactions and credit card records place people in certain places at certain times, while cameras, enhanced with remote biometric identification, may be mounted on vehicles, poles, buildings, or unmanned aerial systems, creating the potential for 24-hour monitoring, seven days a week, ad infinitum.  

The digitization of this information means that it can be recorded and combined with biographic information and subjected to algorithmic analyses, penetrating further into citizens' lives. Even when data is derived from the public sphere, the government's use of it may impact free speech, the right to assemble, and religious freedom, to say nothing of personal privacy. 

Technology erodes other Fourth Amendment distinctions. A series of cases in the 1970s established the contours of what would be considered "reasonable," based on who holds the information. Data held by the individual generating it is afforded a higher level of protection, while data held by third parties, such as companies with whom one contracts for goods or services, is granted a lower level of protection. But technology has created an imbalance. Digital dependence - i.e., the degree to which we rely on digitization to live our daily lives - has radically changed the world in which we live. School, work, social interactions, hobbies, and other pursuits are now online by nature of how society functions. This has two implications. First, new kinds of information are now generated and, therefore, accessible. Second, our reliance on industry and third-party providers to service the needs of daily life has made much more of our personal information, as well as new kinds of personal data, vulnerable to government collection.  

Another distinction centered on the type of information under consideration - content versus non-content - similarly collapses in the contemporary world. For years, envelope information has been considered non-content, and thus less protected than content, on the grounds that the latter, and not the former, reveals an individual's private communications, thoughts, and beliefs. But what happens when a search engine reveals what it is that is being examined in the uniform resource locator (URL) itself? Metadata of all sorts can reveal much about an individual - indeed, law enforcement regularly uses search terms to bring criminal charges against individuals. The reason is simple: patterns in phone calls, text messages, instant messaging, emails, or even URL visits demonstrate beliefs, relationships, and social networks - yet the form of that data (metadata) has not historically been considered content. The same is true of consumer metadata and financial records. Sophisticated pattern analytics mean that non-content morphs into content, making any formal distinction meaningless.  

Differentiating between domestic and international communications similarly proves inapposite to the contemporary world. Communications are now global. If I email a friend from a restaurant in Boston and she reads the email while sitting at a restaurant in New York, the message may well have gone internationally, placing it under weaker Fourth Amendment standards. It is not that the privacy interest in the communication is any different than that of a traditional letter. It is simply that digitization and the advent of worldwide communications networks have narrowed my right to privacy for the same information. Or how about cloud computing, or the use of Drop Box, or Google Docs? Is all of this information fair game, so to speak, just because Google happens to hold the document in Singapore as opposed to San Francisco? The problem, as with the distinctions between private and public space, or content and non-content, has nothing to do with the interests implicated and everything to do with new technologies. 

This Article explores how digitization is challenging formal distinctions in Fourth Amendment doctrine that previously have played a role in protecting the right to privacy. The purpose, consistent with the aim of the NYU Annual Survey of American Law, is to provide an overview of where the doctrine has been and where it is now, with some thoughts about what direction it could go to take account of the privacy interests implicated by the digital world.