On November 21, the American Constitution Society (ACS) presented a panel on ‘The Constitution and Privacy in a Time of Innovation.’ The participants were Stephen Vladeck of American University, Chris Calabrese of the ACLU, James Grimmelman of the University of Maryland, and Orin Kerr of The George Washington University, and the moderator was Dahlia Lithwick of Slate. The video of the panel is here.
The ACS asked the question: is it possible for the Constitution to keep pace with new technologies? The question could not have been more topical, as the panel took place just a day after it was revealed that the government has been collecting Internet metadata for many years.
Orin Kerr started by reminding the audience that the Fourth Amendment was originally applied to breaking into homes, arresting people and seizing in the physical world. However, the Fourth Amendment also addressed new issues over the years.
Professor Kerr noted that “every age is an age of innovation.” In the 20’s, the issue was how the Fourth Amendment would apply to automobiles and telephones, in the 60’s, how it would apply to phone booths, and in the 80’s, how it would apply to aerial surveillance. Today, the issues are DNA, email and GPS devices. Professor Kerr believes that we’ll see more cases similar to the 2012 U.S. v. Jones GPS case in the future.
Chris Calabrese regretted that the Supreme Court has dodged the issue of the records about each of us, not the content of our messages, but the metadata. This is “envelope information” such as who we call and when. Mr. Calebrese gave the example of an individual calling a suicide hot line: this would be a very sensitive piece of information. However, the Supreme Court still follows the third party doctrine, as stated in Smith v. Maryland: if you share info with a third party, it is no longer protected by the Fourth Amendment.
U.S. v. Jones is the first case where the Supreme Court addressed a form of metadata, location information. Mr. Calabrese stated that as “we live in a world of records,” where we constantly create records, it is thus essential to know who owns these records and how they are accessed. These are issues that both the Supreme Court and Congress must address.
James Grimmelman reminded the audience that some third parties holding our information now actively engage in information gathering, unlike telephone companies which play a somewhat passive role. He gave Facebook as an example of a company actively trying to maximize information to gain advertising revenue and fuel activities on its site. To do so, it gives incentives to users to share information.
Professor Grimmelman pointed out that Facebook is aware that users are concerned about how their information is being shared with the government, which may chill their willingness to share information on Facebook. Mr. Calabrese later said that, according to a survey, the public dislikes corporate collection of data even more than government collection of data, as they perceive the government as giving them at least something back.
Professor Grimmelman also believes that surveillance by drones in public places will be an important issue, as the government will know and aggregate the whereabouts of individuals on a massive scale. Mr. Calabrese noted that we appear in public, sure, but in “an impermanent way” and that would no longer be the case if our public presence is constantly recorded and analyzed. This is a pervasive intrusion on our private lives.
Stephen Vladeck addressed the issue of whether the Fourth Amendment is affected by NSA surveillance. He reminded the audience that the FISA Act functioned in a space unoccupied by the Supreme Court. FISA was extended in 2001 and in 2008, and gave the government authority to implement programs such as PRISM. What is the role of the Fourth Amendment in these surveillance issues?
Professor Kerr does not believe the Fourth Amendment has a role to play there, under the third party doctrine, but Professor Vladeck proposed to differentiate between records that we individually share with third parties, from the fairly new ability for the government to aggregate that data.
For Professor Vladeck, the Fourth Amendment can regulate surveillance, as only the government is capable of such massive surveillance. However, Professor Kerr does not believe that the Fourth Amendment protects metadata against searches, as it only protects against government invasion into one’s private space. Metadata searches should be regulated by a law, but this is not the role of the Fourth Amendment. When reading the Jones concurrence, it seems however, that the Supreme Court may soon introduce a new category of search. It could possibly cover metadata.
That may happen this term, as Professor Kerr believes the Supreme Court will tackle this term the issue of whether the police may search a cell phone incident to an arrest, and, if they can, how far they can search. That would be an opportunity for the Supreme Court to discuss once again the issue of new technologies and the Fourth Amendment.