THE BLOG
08/12/2013 12:21 pm ET | Updated Oct 12, 2013

Digitizing the Fourth Amendment

Pen and paper have largely been replaced by digital documents and cloud storage, yet law enforcement agencies and courts have had trouble honoring the Fourth Amendment in a world increasingly devoid of "papers and effects."

It's no secret that technology has far outpaced the law, but must the law circumvent the Bill of Rights to catch up?

Last week, in a major blow to electronic privacy rights, the Fifth Circuit Court of Appeals ruled that law enforcement agencies did not need a search warrant to obtain historical location data from cellphone companies.

The judges found that location data was "clearly a business record" and therefore not protected by the Fourth Amendment. In addition, the judges held that users have no privacy protection because they voluntarily use cell phones and understand that their location data is automatically stored and can be potentially used by the government to track their whereabouts.

By extension that argument implies that to maintain privacy one must abstain from using cell phones along with computers, tablets, and the Internet since usage results in the creation of a digital trail that is stored on a server.

Whether users willingly create a data log every time they dial the phone, search online, make purchases on Amazon, or watch a movie on Netflix is moot.

Metadata and phone records are the digital equivalent of receipts for calls and web usage. In physical searches, law enforcement agencies are barred by the Fourth Amendment from establishing a dragnet that examines every receipt from every transaction for every individual, yet the NSA indiscriminately collects and analyzes metadata from nearly every Internet user to startling effect.

In an Orwellian fashion, the NSA can use metadata to track down individuals in Pakistan searching online in German or even an Iranian who sends an encrypted Microsoft Word document. Furthermore, the NSA has gained direct access to data from Google, Apple, Facebook, and a host of other Internet giants that allows the agency to establish a snapshot of your entire network -- how many emails you've sent, who you correspond with most frequently and how often -- and even see content like emails, chat logs, videos, and photos.

Meanwhile, by using historical cell phone location data, law enforcement agencies can determine your habits and preferences like whether you worship at a church or a mosque, who you contact and how often, and if you attended certain events.

More alarmingly, due to a glaring loophole in the 27-year-old Electronic Communications Privacy Act, which was passed before email was even common, law enforcement agencies do not need a warrant to access emails that are more than 180 days old.

While consumers willingly allow tech companies to use sophisticated algorithms that sort through our search history, call logs, emails, or financial records to help make our daily lives easier, these agreements have resulted in practically ceding complete control of our data to outside parties.

In his prescient work, "Privacy and Freedom," legal scholar Alan Westin argued that individuals have the right to determine how much of their personal information is disclosed and to whom, as well as how it should be stored and distributed.

Unfortunately, in the 46 years since Westin's seminal book was published, individuals are largely powerless to control their data in any shape or form.

It's time we wrestled back control of our data. Email, metadata, search history, call logs, these are our "papers and effects" in the digital age and we have every right to safeguard them from prying eyes.

With tech companies readily aiding the government as they clamber for our data, there is a clear need to establish a "Digital Bill of Rights" to protect our privacy - and in the digital age, privacy is data and protection is control.