New law review article: “The Missed Opportunity of United States v. Jones–Commercial Erosion of Fourth Amendment Protection in a Post-Google Earth World”

New law review article: The Missed Opportunity of United States v. Jones–Commercial Erosion of Fourth Amendment Protection in a Post-Google Earth World by Mary Leary on SSRN. Abstract:

The Fourth Amendment protects people from unreasonable searches and seizures by the government. These protections, therefore, are only triggered when the government engages in a “search” or “seizure.” For decades, the Court defined “search” as a government examination of an area where one has a “reasonable expectation of privacy.” Such an expectation requires both that the individual demonstrate a subjective expectation of privacy and that the expectation is one society finds reasonable. In 1974, Anthony Amsterdam prophesized the unworkability of this test, warning of a day that the government would circumvent it by merely announcing 24 hour surveillance. Similarly, the Court has stated that it would adjust the definition of a search if the government tried to “condition” citizens to have no expectation of privacy.

Today, those concerns have come to bear, but not in the way Amsterdam or the Court predicted, and the Court has failed to respond. Today, private commercial entities, not the government, have utilized technology to “condition” citizens to have no expectation of privacy. They have done so on two particular levels. First, these commercial entities have obtained private data about citizens, i.e. information from their “digital dossier.” They have then revealed the information to others resulting in citizens feeling as though “nothing is private.” Second, when these entities obtain the data, they do not afford the individuals the opportunity to “demonstrate” their subjective expectation of privacy. Since a “search” requires a demonstration of a subjective expectation of privacy, and these commercial entities have used today’s technology to strip citizens of any expectation of privacy or ability to demonstrate one, then little the government examines will constitute a “search” and trigger Fourth Amendment protections.

This article identifies this assault on the expectation of privacy due to “corporate conditioning” of the consumer and proposes a viable legislative solution. It examines the Court’s existing approaches, including a thorough analysis of the recently articulated frameworks announced in the majority and concurring opinions of United States v. Jones, noting their inadequacy for today’s technological challenges. Utilizing the example of satellite imaging technology, it demonstrates the threat to privacy expectations unanticipated by the Court. This article proposes a new legislative framework for respecting privacy protections in response to these corporate induced privacy affronts. This framework, supported by analogous American law and European proposals, calls for an opt-in model. Before a citizen can be assumed to have voluntarily sacrificed his privacy, he must meaningfully opt in to the sharing of his private data. Such an opt-in must not be conditioned upon the service but must be uncoerced.

This approach advocates for addressing this unanticipated problem further upstream than other solutions by focusing on the commercial entities and not the later police action. It is rooted in the concept of ownership of one’s digital footprint and, therefore, the right to control one’s data.