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One Small Step for Privacy...

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In the United States v. Antoine Jones, the Supreme Court made an extremely important decision, unanimously determining that installing a GPS-tracking device to a suspect's car constitutes a search and thus requires a warrant. Justice Antonin Scalia delivered the opinion of the court, which narrowly focused on whether there was physical trespass. Four justices -- Chief Justice Roberts, and Justices Anthony Kennedy, Sonia Sotomayor, and Clarence Thomas -- joined the opinion. Sotomayor had other things to say that are worth noting. Justice Samuel Alito -- joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan -- concurred with the majority judgment, but not with Scalia's reasoning, instead arguing for warrants based on "the reasonable expectations of privacy" standard. United States v. Antoine Jones raises issues that will not be disappearing soon.

Start with Justice Sotomayor, who wrote

GPS monitoring generates a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations... I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on... More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.

Alito pointed to the Katz decision, which declared that "the Fourth Amendment protects people, not places." A search warrant was needed for wiretapping in even so public a place as a phone booth. After Katz, Congress enacted a comprehensive wiretapping statute. Alito's concurrence suggests that Congressional legislation is needed to regulate law-enforcement use of the "many new devices that permit the monitoring of a person's movements." Sotomayor clearly agrees. The ball has been thrown into Congress's court.

This is no simple ball. In 1976, the Supreme Court found that customers had no reason to expect that checks held by the bank would be "private" -- that is available to the government only with a search warrant -- because in sharing the checks with the bank, the customers lost any expectation of privacy. In 1979, the court took this doctrine one step further, ruling that dialed phone numbers were not private either (because they were shared with the phone company). So a subpoena would suffice for getting that information.

The 1979 decision occurred when phones were fixed black devices that didn't move. Searches involved an encyclopedia, a library catalog, a newspaper's microfiche, and no electronic trails of what you were doing. The world has changed mightily since then.

The really big issue, one not directly addressed by the Jones decision, is data accumulated by third parties. Third parties -- the Googles and Facebooks, Amazons and Verizons, and thousands of small companies you've never heard of -- collect the data of what you search for, whom you communicate with, what you read, what you buy, where you are each day. They store it and use it to pitch products to you, and they sell the data to others. In most cases you have no idea who has this profiling information (or what they do with it). That this is highly privacy invasive goes without saying. Protecting the citizenry from intrusions by the government -- which is what the Bill of Rights and Supreme Court decisions do -- is all very good, and it's important. The government has the power to arrest you and throw you in jail. Restrictions on government power matter.

But that private companies can willy nilly collect such privacy senstive information essentially without restriction while the government must work hard to access it doesn't really protect citizens. Think about getting health insurance, or being hired for a job, or renting an apartment -- and all the information that can be used to determine whether you are a good candidate. If highly invasive data can be collected by third parties and then used, how easily can individuals function in the modern world?

In response to the changes in technology, the European Union is proposing data-protection reform that would compel companies to obtain explicit consent from individuals before using their personal data and to completely destroy all copies of that data upon request. But in a world where cell phones track -- and record -- your location in 15-minute increments, and start-ups propose new ways to use that data for advertising, new services, etc., how plausible is the European approach? The last half-dozen years have seen the explosion of an industry based on taking "know your customer" to depths unimagined even a decade ago.

The Supreme Court decision is simply one small step for privacy. Will it be the beginning of a large step towards protecting the privacy of individuals? Changing the data collection and usage practices of Amazon, Google, Facebook, etc. will undermine business models and meet with much opposition from Silicon Valley. This decision whether to tackle the hard issues will be up to Congress. So far, there has been little government action on privacy aside from some enforcement policies by the Federal Trade Commission and the NSTIC no-tracking requirements for identity providers on government websites. The Supreme Court threw a large ball to Congress. Whether it reacts by constructing a law that controls law-enforcement access to monitoring information, or whether it chooses to tackle wider privacy issues, will have huge impacts on Americans' privacy for decades to come.

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