Privacy in the Digital Age

The surveillance capabilities through the use of big data, artificial intelligence, and facial recognition software, among various existing technologies, have provided governments and intelligence agencies with an unprecedented ability to monitor their citizens. The potential threat to privacy has prompted global organizations to take notice. In 2018, the UN Rapporteur on the Right to Privacy issued a 38-page “Draft Legal Instrument on Government-led Surveillance and Privacy.” The Draft states, “Surveillance needs to be limited to what is necessary and proportionate while states need to be able to guarantee a safe and secure environment.” The difficulty lies in determining the formula which allows for a proportionate response respecting both privacy and safety within a particular environment.

Contemporaneously with the UN Rapporteur Draft, the University of Montreal developed their Declaration for Responsible AI Development. The third segment of this Declaration, titled Protection of Privacy and Intimacy Principle, enumerates an eight-point process to protect individuals from “AIS intrusion and data acquisition and archiving systems (DAAS).”

The dangers from surveillance are real and have potentially grave consequences when abused. Organizations like Human Rights Watch note how the rights of women and LGBTQ+ individuals can be violated through surveillance that attempts to monitor what the state defines as immoral behaviors like “extramarital and homosexual sex.” According to reporting from the New York Times, the assassination of Jamal Khashoggi involved Saudi Arabian officials using Pegasus spying software to eavesdrop on Khashoggi prior to his death.

Much of the attention given to this issue originated with the 2013 revelations by the former CIA and NSA analyst, Edward Snowden. The desire to encrypt and protect sensitive digital information and to fight back against surveillance and warrantless intrusions exploded because of Snowden’s disclosure of the extent of spying by the United States and other intelligence agencies around the world.

Government surveillance against potential terrorism remains an important and noble goal. Nevertheless, we must safeguard our privacy, even when this safeguarding protects criminal behavior. In 2011, police arrested Timothy Carpenter for a series of robberies of Radio Shack and similar stores in the Detroit area. At his trial, the government introduced evidence called “cell phone location data.” The government obtained this data from Carpenter’s cell phone companies. This data allowed authorities to place Carpenter within a radius of a half-mile to two miles of the location of the robberies.

In his defense, Carpenter claimed the government violated his Fourth Amendment rights because they did not obtain a warrant to retrieve this information. However, the authorities did have authority through a federal law known as the Stored Communications Act. The standard to obtain this data through federal law is easier than the Fourth Amendment requirements. According to the Act, disclosure of telecommunications records is allowed when “specific and articulable facts show... that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”

The case, Carpenter v. United States (2017), hinged on what expectation of privacy exists when a third party is involved. Justice Kennedy felt these cell phone records remained less sensitive than banking information, which can be obtained without a warrant. The argument is that by using your cell phone and accessing a cell tower of your chosen provider, that record created by the provider diminishes your expectation of privacy. Justice Sotomayor argued average citizens do not want the government to know where they are at all times. The Carpenter case demonstrates the difficulty of defining privacy under the Fourth Amendment, which was established in an age that would never have imagined the today’s digital world. Though not taking sides, several of the major technology companies filed a friend-of-the-court brief asking for updated standards and guidance on this issue.

Privacy in the Digital Age (cont.)

In a 5-4 decision, the Supreme Court overturned the earlier court decisions. It ruled the “third-party doctrine” did not apply to cell-site location information. The dissenting Justices claimed the majority departed from the original intent of the Fourth Amendment, namely protection against unreasonable searches and seizures against one’s property.

A year prior to the Carpenter ruling, the FBI had sued Apple for its refusal to unlock an iPhone belonging to Syed Farook, who had killed 14 individuals in a shooting in San Bernardino, California. A federal judge asked Apple for “reasonable technical assistance” to the FBI. This request would have forced Apple to override its system which automatically disables a phone after ten unsuccessful password attempts. This feature makes the data on a phone inaccessible. In his refusal to comply, Apple CEO Tim Cook explained this would require Apple to write new software, which he feared would create “a master key, capable of opening hundreds of millions of locks.” The case was dismissed when Federal authorities found another provider capable of unlocking the phone.

Digital protections continue to advance and new technologies, like artificial intelligence, enhanced surveillance and the collection of sensitive data. Therefore, the Supreme Court must work to ensure our Fourth Amendment rights will increase in importance and complexity. As the Roman poet Juvenal asked nearly 2000 years ago: “Quis custodiet ipsos custodes? /Who will guard the guards themselves?”