By Paul Rosenzweig, The George Washington University Law School
Does an individual have any constitutional protection against the wholesale disclosure of personal information that has lawfully been collected by third parties? Can an individual use his or her Fourth Amendment rights of privacy to prevent the government from using such data?
Currently, constitutional law has little role in regulating the collection of Internet and telephone data about an individual. My expectation of privacy ends at your doorstep. When I give you information, I lose control over how it is disposed of. This principle, soon to be called the third-party doctrine, was extended to the idea of personal data in two cases in the 1970s.
Let’s consider the United States v. Miller case. It involved bank records. The High Court found that the Fourth Amendment does not protect financial information that has been voluntarily disclosed by an individual to a bank against the subsequent disclosure of that information to the government. Meanwhile, in the Smith v. Maryland case, the court held that records of the phone numbers called by an individual are not protected against disclosure to the government.
One of the real oddities of these two cases is that they’re quite old. Both arose before personal computers even existed, and before there was much concern with wholesale collection of personal information. But that hasn’t stopped courts from applying the third-party doctrine in the modern context.
This is a transcript from the video series The Surveillance State: Big Data, Freedom, and You. Watch it now, on Wondrium.
The Third-party Doctrine in the Modern Context
One result of applying the third-party doctrine in the modern context is that protections now vary between the content of a message—its text or substance—and the non-content portions, like the address on the outside of an envelope, or the metadata of a phone call.
At least one federal judge has found that Smith is too old, and that it doesn’t really apply to the digital age. But the reality is that courts are frequently unwilling and perhaps even unable to adapt in real time to new questions that technology raises. However, pressure is growing; and soon, the courts may be obliged to act.
Learn more about the nature of privacy.
Privacy and the Issue of Consent
Consent solves most of our constitutional problems with government search and seizure. If you give your consent to a police search, then the search is reasonable. Provided that you are not coerced into giving your consent, a citizen’s decision to permit the government to scrutinize his actions is an authorization.
The idea of consent is a core of democracy; and in many ways, it’s a barrier to unreasonable government surveillance. The corollary is that in the absence of consent, surveillance would not generally be permissible without a warrant.
But here, our theory runs into the relatively narrow definition given to consent by current court interpretations.
The Gilmore v. Gonzales Case and Expectation of Privacy
Gilmore was a civil liberties activist who sued the United States. He wanted to be able to fly on airlines without showing an identification document—such as his drivers’ license. Prior to the 9/11 terror attacks, this was something you were allowed to do.
One of the new forms of government surveillance that came about after 9/11 was enhanced airport screening. Some of that was physical screening, while another was identification checks and crosschecks of your name against lists of known or suspected terrorists. For that to work, you had to provide a picture ID.
And that identification requirement is what Gilmore challenged. He argued that the Supreme Court had recognized Americans’ constitutional right to travel. And Gilmore said that right could not be conditioned on subjecting one’s self to a violation of a reasonable expectation of privacy under the Fourth Amendment.
In other words, he argued that combining the Fourth Amendment protection with his right to freedom of movement meant that he was entitled to travel without showing a picture ID.
Gilmore lost his challenge in a case that goes by the title Gilmore v. Gonzales.
Court’s Ruling in the Gilmore Case
The Ninth Circuit Court of Appeals decided the matter on two grounds: One relating to reasonableness, and another relating to consent.
The first part of the decision is broadly relevant to our discussion of surveillance. It concluded that requiring identification is fundamentally reasonable as weighty national security interests routinely trump individual privacy concerns.
The other aspect of the case turned on this notion of consent. The court said that by buying a ticket when he knew that he would be subject to airport scrutiny, Gilmore had implicitly consented to that scrutiny. The choice to fly on an airplane was Gilmore’s to make, and it was not compelled in any way by the government.
Learn more about the psychological implications of observation.
Consent: Voluntary or Mandatory in Modern World?
The logic of the consent rule in Gilmore captures a great deal of everyday life in America today that we would not think necessarily of as voluntary. But there it is: Voluntary in theory; pretty much mandatory in practice. For example, how realistic is it that you won’t use a smartphone and create metadata about your phone call?
So the current state of constitutional law is one where the doctrines of law really don’t protect privacy—at least not with respect to metadata and other forms of digital information. All of this might change, though, because of growing public and governmental concerns over problems of big data.
Common Questions about Third-party Doctrine and the Issue of Consent
The third-party doctrine holds that the constitutional law has little role in regulating the collection of Internet and telephone data about an individual. This means that one has no constitutional rights to protect information voluntarily disclosed to others.
The idea of consent is a core of democracy as it’s a barrier to unreasonable government surveillance. The result is that in the absence of consent, surveillance would not generally be permissible without a warrant.
Gilmore wanted to be able to fly on airlines without showing an identification document. He argued that combining the Fourth Amendment protection with his right to freedom of movement meant that he was entitled to travel without showing a picture ID.